One further thought about the proposed marriage amendment. (You have all read Eugene’s careful parsing of it, right?)
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 amendment proponents make a great deal out of judicial overreach and democratic authority. But this amendment would forbid the democratic supermajority of a state from amending its state constitution to say: “Civil marriage shall be open to same-sex couples.” Or, rather, it would forbid that section of the state constitution from being given force. State courts would be required to read that section of their state constitutions as being legally null.
As far as I know this would be the first time ever that the federal government has dictated a rule of state-constitutional construction. The Supreme Court doesn’t do that; it defers to the state supreme court’s construal of the state constitution. Volokh readers will be sure to let me know if I’m mistaken on that point, but I don’t think I am.
Furthermore gay marriage would join a pretty short list of topics and positions that have been forbidden to state constitutions. (Here talking about substance rather than rules of construction.) State constitutions cannot authorize slavery or polygamy. They cannot authorize miscegenation laws– though federal courts struck down the laws, not the passages of the state constitutions, which have in some cases remained in the texts. They cannot, anymore, sanction bicameralism modeled on the federal constitution, i.e. with one house elected on a principle other than population. They cannot authorize a state to create a theocracy or to suppress political dissent; the federal Constitution plus the supremacy clause places some limits on what state constitutions can actually do. And the Constitution guarantees each state a republican form of government, a clause now considered nonjusticeable.
Most of these limits, of course, are judicially-imposed; those who doubt the incorporation doctrine would say ‘judicially-created.’ Slavery and polygamy are really the only directly analogous cases I can think of, in which the content of state constitutions was taken direct aim at (rather than being indirectly limited) through the political process (rather than the judicial).
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