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.

The Federal Marriage Amendment represents a dramatic reworking of the U.S. federal system. By its terms, it removes from State prerogative the regulation of the right to marry, and creates by a stroke of the pen not only a federal law of marriage, but a federal constitutional law of marriage. In so doing, it divests the State courts of the power to interpret their state law and their state constitutions.

Those who - with the exception of Bush v. Gore, 531 U.S. 98 (2000) - have always argued in favour of "states' rights" are now advocating a massive intrusion into the most fundamental sphere of State power. The irony of this hypocrisy should be lost on no one. If the near-unanimous rejoicing of the Right at Bush v. Gore's denial to the States of the previously unquestioned power to construe their own laws were not proof enough that the invocation of "states' rights" is entirely result-driven - concerned not with principled application of the law but with manipulation of the law in order to obtain the desired result, then the FMA should convince all but the intentionally ignorant.

It is argued by some supporters of the FMA that its only purpose and sole effect will be to stop "activist judges" (a delightfully flexible term that is applied to Justice Anthony Kennedy when he authored Lawrence v. Texas, __ U.S. __, but not when he cast his vote in Bush v. Gore) "legislating from the bench." If this is indeed the intended effect of the FMA, then it is an example of exceedingly poor drafting. Anyone who would draft an amendment with the text of the FMA to serve that purpose should not be allowed near a municipal ordinance, much less something as momentous as a constitutional amendment.

But this is unlikely the result of egregious incompetence. Even the most inexperienced drafter would know to borrow the language of § 3(a) of the Defense of Marriage Act (DOMA) if the purpose were to prevent "activist" judges from construing the law to create an implied right of same-sex marriage. But the FMA is radically different from the DOMA.

The DOMA has two basic provisions. § 2(a) operates to give the States plenary power to recognise or deny recognition to out-of-state same-sex marriages. § 3(a) provides that the definition of "marriage" in federal law excludes same-sex marriages from its scope. While there are serious constitutional questions about the validity of the DOMA, it does not effect a wholesale usurpation of State power. If a State wishes to recognise out-of-state same-sex marriages, the DOMA does nothing to impede it. If Congress should reverse course and recognise same-sex marriages, it may do so by enacting an appropriately worded statute.

If the drafters of the FMA merely wanted to ensure that the DOMA would withstand constitutional challenge and that same-sex marriages would be the prerogative of State legislatures, then they've really made a hash of it. By its own terms, the FMA provides that "Marriage in the United States shall consist only of the union of a man and a woman." This is breathtakingly broad for an assertedly narrow purpose. If it means anything at all, this clause renders unconstitutional any attempt by a State, federal, or territorial government to recognise anything falling within the as-yet undetermined constitutional definition of "marriage" between same-sex couples. In order to exclude same-sex marriages from federal law, reserving to the States the right to recognise or decline recognition, they need only say "Congress shall make no law defining marriage as anything other than the legal union of one man and one woman." This would leave the power of the States intact, and maintain the traditional balance of federal and State power.

Instead of leaving the States with their Tenth Amendment power to regulate matters of traditional State concern, a power states already lacked with regard to citizenship prior to the Fourteenth Amendment (as the Constitution reserved such matters to Congress), the FMA creates a whole new branch of federal constitutional law, one that is more poorly defined than any other. While speaking in broader, more sweeping terms than almost any other provision of the Constitution, the FMA fails to define any of the new concepts that it attempts to introduce into federal constitutional law. For example, the FMA refers to "union between a man and a woman." This is deceptively simplistic. What constitutes a "union between a man and a woman?" How does one determine the "constitutional sex" of hermaphrodites, born with the external (and sometimes internal) sexual characteristics of both sexes? What about women with testicular feminisation (Androgen Insensitivity Syndrome [AIS]), who have all the outward appearances of women, and have no reason to believe they are anything else, but have an unexpressed XY chromosome? If a "man" in the constitutional sense marries a woman with AIS, does this constitute an unconstitutional same-sex marriage? If this amendment is interpreted in the manner suggested by the Texas Court of Appeals' decision in Littleton v. Prange, people would need a karyotype or a DNA test in order to be sure that their marriage was constitutionally valid. Indeed, the result of the FMA, if so construed, would be either to prevent certain persons of biologically indeterminate sex from marrying altogether, or to require them only to enter into same-sex marriages. Transsexuals, too, face similar problems, although one doubts that the Amendment's drafters are particularly concerned.

Similarly, the FMA would create certain undefined constitutional "incidents of marriage." Of course, when determining the legal effects and incidents of marriage, courts have traditionally looked to State law, something the FMA would expressly prohibit if State law somehow conferred a constitutional "incident of marriage" onto a same-sex couple. Similarly, the FMA would require all "civil unions" to be rendered null and void; it is well established in constitutional law that a State cannot simply rename things in order to get around constitutional requirements. A state can't label an offence that carries a five-year sentence a "misdemeanour" in order to circumvent the right to counsel and a jury trial. Thus, there would have to be an actual constitutional definition of what a "marriage" is in order to develop a constitutional definition of the "incidents of marriage."

On this subject, the FMA simply chases its tail: the Federal Constitution would include "constitutional marriage law," but provide no real definitions of its own. Thus one would have to resort - as has been done for two centuries now - to State law to determine what a "marriage" is and what it entails. Except that the FMA prohibits resort to State law to the extent that State law is inconsistent with the FMA. This will leave judges in the position of having to make things up as they go along, the quintessence of judicial activism.

In sum, the FMA creates a massive, amorphous, and tautologous body of federal constitutional law that both usurps the States' traditional roles as laboratories of democracy and leaves federal judges to legislate from scratch. In so doing, it also destroys one of the traditional tools of grass-roots activism, from the Abolitionists, through the Sufragettes, on through the civil rights movement - going from the local level to the national. Of course, much like the similarly reactionary "Flag Protection Amendment," this constitutional spawn of the fringe Right will likely do no more than stir up alienation and resistance in the electorate.