State Marriage Amendments and Overreaching: On Plain Meaning, Good Public Policy, and Constitutional Limitations

Abstract

This article discusses the different kinds of state marriage amendments that have been passed to prevent same-sex couples from marrying. The language in some of the amendments is open to a very broad construction, creating the potential for unforeseen and undesirable effects the imposition of which cannot be justified by appeals to intent, plain language, or good public policy. The amendments adopted in Michigan and Ohio are examined more closely than some of the others, since the Michigan and Ohio amendments provide good examples of language that either might be or has been interpreted in ways which were likely not anticipated by those voting for them. The article suggests that many of these amendments might be interpreted to be a rejection of recent ALI proposals regarding family dissolution and even a rejection of some of the fairly well-settled policies represented by Marvin v. Marvin. The article further suggests that broad constructions of these amendments make them more vulnerable to constitutional attack and that courts should construe them narrowly because doing otherwise will subvert the language of the amendments themselves, the intentions of those voting for them, good public policy, constitutional guarantees and basic principles of fairness.

Keywords: marriage, amendment, construction, incidents, equal protection, due process, parenting, domestic violence, ALI, Marvin

JEL Classification: J12, J70, K10