Massachusets simply cannot pass a law that says “Gay Marriage is Legal,” such laws do not exist. Things are either legal, because there is no law against them, or they are legal because a previous law against it has been repealed. We do not write laws that enumerate what is “legal.” So arguing that a state could somehow pass legislation that would supercede the constitution is, I think, missing the point.

So the US or Massachusetts Supreme Court, for example, could not one day determine that the equal protection clause implies a right to gay marriage. No “legislating from the bench” as they say. Legislating from the legislature remains an option. No doubt one of the strategies of same-sex marriage advocates would be to bypass hostile legislatures and have their respective Supreme Courts infer a right to same-sex marriage from their constitutions, to “find” it burried in some penumbra. This amendment would block this strategy, forcing same-sex marriage advocates to limit their activities to the legislature.

In short, this is an attempt by the legislature to make sure they, and only they, get to control this issue. What they will do with that control is still open.

Looking it over further this Amendment may in fact go further than I had thought. I’m not sure.

What they can’t do is a few things: (1) they can’t say that the existence of gay marriage in Massachusetts plus a federal Constitutional requirement that the recognize Massachusetts contracts, forces gay marriage in Alabama, (2) can’t say the same thing except for an in-state requirement, (3) courts can’t say that the federal Constitution in any of its claims about say equality or citizenship mandates gay marriage, and (4) (this is the titchy bit) state courts can’t claim that their state Constitutions force gay marriage by same: that is, right now all state Constitutions are understood not to explicitly _force_ (though not necessarily to condemn) gay marriage.

Incidentally I think all that is correct, I just don’t want it in an Amendment. For example in MA our courts said, look, the state Constitution forbids discrimination and so it _mandates_ gay marriage (case (4) above). Now, that is prima facie ridiculous to me (who ain’t a lawyer): they need one of two things to be true. Either they need to say the framers of the MA Constitution to have believed that the law was meant to include things like gay marriage — which NOBODY thinks is true — or they need to say, well, by modern standards a “reasonable man” would interpret the Constitutional equality requirement that way. Which argument was shot to hell by polls showing at the time that the people of Massachusetts overwhemingly disagreed. I think the current effort to get courts to play this game is hugely misguided, especially at a time when it was starting to look like individual state legislatures to change the law. I think it was a stupid move. So I don’t really disagree with the amendment but think it’s worthless to put something probably short-lived and possibly redundant in the Constitution: a “kick me” sign in PJ O’Rourke’s terms.

Incidentally it isn’t breathtakingly obvious to me that federalism works real real well here. There’s an argument for letting states (and in fact counties) set requirements for getting a marriage license, but once married I think it’s tremendously useful to know that you’re still married if you move. There is a certain amount of law (and Constitution) in fact to guarantee, more or less, that: and that’s what DOMA and this Amendment are trying to carve out a specific exception to.