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BYU Journal of Public Law




Does marriage, in the United States, need the protection of an amendment to the federal constitution, which would enshrine marriage as only the union of a man and a woman? In answering "yes" to this question, sponsors and supporters of the Federal Marriage Protection Amendment (FMPA), in the House of Representatives and the Senate, have made various appeals to the gender complementarity of marriage: (1) opposite-sex marriage is part of "God's created order;" (2) procreation is the purpose of marriage and has a tight nexus with optimal mother/father parenting; (3) marriage bridges the "gender divide" by properly ordering heterosexual desire and procreation; (4) marriage is "about children," not adult love; and (5) traditional marriage transmits values crucial to democracy. This article canvasses and critically evaluates a sampling of these arguments, as they have featured in Congressional hearings and debates about the FMPA. It asks whether FMPA supporters can reconcile their stance about the imperative of protecting the gender complementarity of traditional marriage with the transformation of marriage brought about by family law reforms and contemporary Equal Protection jurisprudence. It argues that FMPA supporters continually and uncritically appeal to gender complementarity as a justification for preserving "traditional marriage" without addressing marriage's evolution and whether marriage's definition should continue to evolve.

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