San Diego Law Review

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Sam-sex marriage is a hotly contested social issue. This Article responds to Professor Wolfe by analyzing three tensions that premise the case for the Federal Marriage Amendment. The first tension portrays marriage as both fragile and fundamental. However, the long-standing institution of marriage faces more serious challenges than same-sex marriage. Therefore, if social changes, violence, and disease have not weakened marriage, same-sex marriage likely will not do the institution any grave damage. The second tension claims that activist judges threaten traditional marriage, thus necessitating its definition in Federal Constitutional law. However, the new Federal Marriage Amendment will be left to interpretation and construction by the same activist judges that proponents of the Amendment are trying to stop. The third tension portrays the Constitution as protecting religious, but not sexual experience from state interference. However, the Constitution has been used to justify many cases involving sexual and social changes. Though Professor Wolfe is concerned with promoting the purity of marriage, this author concludes that Wolfe’s article makes one omission: Wolfe does not discuss the emotional lives, material interests, or political dignity of gay people. The author concludes that a discussion of gay people is merely a means to an end of preserving marriage for the benefit of others.

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