A fairly interesting OpEd by J. Harvie Wilkinson III (who happens to be a judge in the 4th Circuit) in WaPo, arguing against the anti-marriage amendment in terms of not using the Constitution to enshrine public policy, which to me seems like a very good idea: that's not what the Constitution is about. (If I were feeling really snarky this morning, I'd comment that those pushing the amendment don't really know what the Constitution is about, but I'm not feeling really snarky.)

There are a couple of missteps, however, that I want to point out.

The Massachusetts Supreme Court concocted a state constitutional right to marry persons of the same sex. The court went on to say that opposing views lacked so much as a rational basis. In other words, centuries of common-law tradition, legislative sanction and human experience with marriage as a bond between one man and one woman were deemed by that court unworthy to the point of irrationality.

No, not really. The Massachusetts court merely asked the right question: does the state have the right to deny marriage to same-sex couples? From that viewpoint, the opposing arguments do not have a rational basis. It's really the same thinking that the US Supreme Court used in Romer and Lawrence. There's also the fact that the "legislative sanction" is a fairly recent phenomenon. Like since the 1970s, if I recall correctly. Marriage law before that rests on assumptions of heterosexuality, but doesn't make it an explicit requirement. It's only with the rise of the Moral Majority and its unholy descendants that you get "defense of marriage laws."

As for the "rational basis" comment, consider this:

Marriage between male and female is more than a matter of biological complementarity -- the union of the two has been thought through the ages to be more mystical and profound than the separate identities of each alone.

How rational is that?

He goes on:

Without strong family structures, there will be no stable and healthy social order, and alternative marriage structures might weaken the sanction of law and custom necessary for human families to flourish and children to grow. These are no small risks, and present trends are not often more sound than the cumulative wisdom of the centuries.

But how, then, does anyone justify denying the chance for a strong family structure to same-sex couples? Same-sex marriage is not an "alternative marriage structure" at all. It is exactly the same marriage structure enjoyed as a fundamental right by heterosexual couples.

While I'm sympathetic with his idea that marriage law does not belong in the Constitution, I can't really support his reasoning. I can, however, agree wholeheartedly with his conclusion:

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics -- some certainties endure; others are fated to be supplanted by the certainties of a succeeding age.

That is probably the best argument against the amendment.