San Diego Law Review

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The Federal Marriage Amendment seeks to confine marriage to one man and one woman. This article supports the Federal Marriage Amendment because the Amendment reinforces the original design of the Constitution in the face of unchecked judicial review power and the expansion of sexual autonomy. The Federal Marriage Amendment reinforces the idea that the people of the states, not the judiciary, resolve social policy. Also, the Amendment supports a presumption in favor of state legislation on marriage. Although conservatives, such as Yoo and Vulchev, state that the Federal Marriage Amendment opposes federalism, this author contends that the Amendment would preserve federalism by prohibiting federal and state governments from changing the traditional institution of marriage. Marriage is already fragile and weakened by no-fault divorce, promiscuity, and cohabitation. The recognition of same-sex marriage endangers marriage as an institution. The political community has a right and duty to regulate the traditional institution of marriage. Genuine marriage stability through gender complimentarity ensures the well-being of couples and children. Same-sex marriage lacks this essential and necessary quality present in traditional marriages. Thus, the author concludes that the preservation of traditional marriage requires an amendment that establishes substantive principles on the nature of marriage and reinforces traditional marriage against the efforts of those who wish to change it.

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