I’ve editorialized repeatedly against these measures in this space and will repeat some of what I wrote four years ago:

…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. …

Somewhat relatedly, Initiated Act 1 on the Arkansas ballot would ban unmarried couples of all sorts from adopting or fostering children under any and all circumstances; one may find a preference for married couples in adoption/foster care entirely understandable while also recognizing that ruling out other arrangements will deprive some children of second-best (or even sometimes first-best) solutions.

Please consider working or donating to help defeat these measures: Arizona (more), California, Florida (more), Arkansas. For a somewhat contrasting view — and I’m well aware there’s a wide diversity of opinions among readers here — check out this letter from David Allen of Texas in our old letters section, expressing frustration with the easy acceptance of judicial activism that can short-circuit democratic discussion of these issues.

State marriage amendments: thumbs down is a post from Overlawyered - Chronicling the high cost of our legal system

Silly enough so far, no harm, no foul, but Michigan Child Protective Services intervened, held Leo in foster care for two days (refusing to release him to the custody of his aunts, who drove from New England on short notice for just such a possibility), and forced Ratte to move out of the house until a second hearing okayed his return. If Ratte and his wife weren’t upper-middle-class academics with access to the University of Michigan Law School clinic professors, it could have been much worse. “Don Duquette, a U-M law professor who directs the university’s Child Advocacy Law Clinic, represented Ratte and his wife. He notes sardonically that the most remarkable thing about the couple’s case may be the relative speed with which they were reunited with Leo.” (Brian Dickerson, Detroit Free Press, Apr. 28 (h/t B.C.)).

Some policy proposals are for taxpayers to fund attorneys to defend parents victimized by Child Protective Services; some go so far as to call it a constitutional right, albeit one having nothing to do with the underlying text of the Constitution. But that would only treat the symptom and ossify the underlying problem of abusive government intervention into the home.

“Hard lemonade, hard price” is a post from Overlawyered - Chronicling the high cost of our legal system