To begin with, they’re not just aimed at preventing judicial activism. Were that the case, they would consist of language along the lines of, “Nothing in this constitution shall be construed to require…”, thus tying the hands of judges who might be inclined to pursue creative misreadings on behalf of a right to same-sex marriage. Very strangely, amendment proponents often manage to pose as tribunes of the right to decide the definition of marriage democratically — although the amendments would in fact prevent democratically elected legislatures from getting their way should sentiments shift in the future from those prevailing today.
When (as is usual) these amendments instruct courts to give no effect whatever to various relationships formed lawfully in other states (such as Vermont civil unions), they ensure a train of harsh and unreasonable consequences. In the past, when the validity of marriages has differed from one jurisdiction to the next, courts have often steered a middle course that protected the reasonable expectations of the parties on matters of, say, inheritance or property division, while not permitting them to “import” the unauthorized legal status for general purposes. If courts are required entirely to ignore the set of property rules that a Vermont couple had thought governed their relationship, they will encourage tactical litigation by, e.g., estranged relatives seeking to grab assets after the death of one of the partners in the union.
Finally, some of the amendments go far beyond banning same-sex marriage as such to institute sweeping and vague prohibitions which will likely lead both to injurious results and to much litigation. Ohio’s, for example, would prohibit government recognition of any status for unmarried individuals “that intends to approximate the design, qualities, significance or effect of marriage.” Republican Gov. Taft cited the vagueness of that provision in opposing the amendment; also opposed are the Attorney General of Ohio and both Senators, all of them Republicans, as well as such large local businesses as Nationwide Insurance and The Limited. (Jim Siegel, “Taft: ‘No’ on same-sex issue”, Cincinnati Enquirer, Oct. 14). Update Mar. 20: Michigan AG interprets state’s mini-FMA to prohibit cities from offering domestic partner benefits.