JACOB LEVY has an important observation regarding the proposed Federal Marriage Amendment:

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.

Those pushing the FMA are, in fact, afraid of democracy — trying to lock in their eroding position on gay marriage against future democratic change. I think they’re right, in a tactical sense, to do that. My students, not especially left-leaning as law students go, are largely untroubled by the idea of gay marriage. I think that’s a generational shift, and I think it’s what the FMA advocates are really worried about.