I'm still puzzling over the marriage amendment.
The always interesting Ann Althouse thinks that proponent of the marriage amendment are hypocrites because of the "second sentence" prohibiting recognition of any status equivalent to marriage. She argues that this provision might take away certain benefits that are currently extended to same sex couples, like the ability to adopt or be covered by a partner's health insurance. I am not sure I like that part of the amendment, but it seems clearly to prohibit recognition of a "status" and not to prohibit any law or private agreement that creates a right that is like some incident of marriage. It would be silly, for example, to think that an amendment that prohibits recognition of a marriage-like status means that two unmarried people can't own a house together or that you can't give someone who is not your spouse a power of attorney. Domestic partner benefits are a bit more thorny, but saying that you get to designate a member of your household as a co-beneficiary doesn't really create a status. It doesn't create a relationship that you need legal permission to get out of and that just by itself comes with a whole set of rights and obligations.
But Professor Althouse thinks its wrong for proponents to assure us that the courts will get it right because the whole amendment is predicated, in part, on the argument that the courts will get the question of whether the Constitution requires gay marriage wrong. "You hypocrites" she cries (assuming you can cry out in cyberspace).
She's overlooking two things. First, the second sentence is designed to restrict the legislature as well as the courts (that's one of my problems with it). Its saying no gay marriage. Period. Whether imposed by the courts or adopted by the legislature. Doing that requires you to use language and, as any law professor or lawyer knows, language is always imprecise. You are always going to have to rely on courts to interpret it correctly. (Having said that, I think they could have done better.)
Second, the prohibition against recognizing a "status" like marriage is part of the effort to prevent courts from imposing same-sex marriage. The Vermont Supreme Court didn't require marriage, but only civil unions. While I'm not ready to agree, there are people who argue that civil unions will have the same - maybe even a more severe-impact on traditional marriage as same sex marriage because it will encourage a social and legal move away from marriage as the norm for cohabitation.