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13 Widener L.J. 799 (2003-2004)
The President, Gay Marriage, and the Constitution: A Tangled Web

handle is hein.journals/wjpl13 and id is 807 raw text is: THE PRESIDENT, GAY MARRIAGE,
Mae Kuykendall*
Until this year, the connection between the United States
Constitution and gay marriage was tenuous at best. Thirty years
ago it would have taxed the popular imagination to think of gay
people as having a constitutional right to marry. Nor could one
have imagined a need for the United States Constitution to bar gay
marriage. The phrase was unknown.
Today, we face a proposed constitutional amendment, the
Federal Marriage Amendment (FMA).' Generally supported by the
President,2 this amendment would decree that no state may define
marriage except as the union of one man and one woman. The
President's endorsement of this amendment, as well as the
arguments being made in favor of it, are based on an unstable mix
* Associate Dean and Professor of Law, Michigan State University
College of Law. This essay is part of a larger article that is forthcoming. I wish
to thank Debra Bassett, Dale Carpenter, Greg Mitchell, Robert Rich, Lee
Stames, Bryan Wildenthal, and Brian Kalt for their comments on earlier drafts.
' H.R.J. Res. 56, 108th Cong. (2003). The text of the Federal Marriage
Amendment provides as follows:
Resolved by the Senate and House of Representatives . . . [t]hat the following
article is proposed as an amendment to the Constitution of the United States.
... Marriage in the United States shall consist only of the union of a man and
a woman. Neither this Constitution or the constitution of any State, nor state
or federal law, shall be construed to require that marital status or the legal
incidents thereof be conferred upon unmarried couples or groups.
2 While there has been a certain studied vagueness in the President's public
statements on the FMA, various reports have indicated that the President has
assured Congresswoman Marilyn Musgrave, the sponsor of the FMA, of his
support. See Bill Straub, Bush Pledged to Back Ban in Nov., Musgrave Aide
Says, ROCKY MTN. NEws, Feb. 28, 2004, at 4A. See also Mike Allen & Alan
Cooperman, Bush Plans to Back Marriage Amendment: Constitution Would
Specify Man, Woman, WASH. POST, Feb. 11, 2004, at Al (reporting that Bush
said he would endorse the FMA language proposed by Representative

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