Amend the Amendment - Revealed just yesterday, here's a look at the new and improved Federal Marriage Amendment (with changes marked):

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, or nor the constitution of any State, nor state or federal law, shall be construed to require that marriage or the legal incidents thereof be conferred upon unmarried couples or groups any union other than the union of a man and a woman.

The purpose of the substitution, which is being offered by the sponsors of the original amendment, is to preserve the ability of states to legislatively enact civil union laws. Chalk up a victory to legalistic precision. The authors have effectively admitted that their original draft was so poorly worded that future courts would have been forced by its language to overturn such civil union laws -- something they claimed not to have intended.

Discussions about changing the amendment for "better" (allowing CUs) or "worse" (abolishing them more clearly) have been going on since the FMA was first introduced. Since the new text reflects the supposedly less-bad outcome, key FMA backers who sought exactly the opposite change are sure to be be less enthusiastic about this draft. While undercutting support among the bigot brigade is a good thing, the change may also generate support in the more moderate camps. You know, the vast middle ground of people who don't support gay marriage but are hesitant to write discrimination into the constitution. Honestly, this is a shrewd move on the part of same-sex marriage foes, and it only makes our job harder, in explaining why our founding document is no place to enshrine straight supremacy. I remain hopeful, however, that it won't overcome traditional resistance to constitutionalizing social policy, even in the face of "activist judges." It may well be that an amendment which really does almost nothing but preserve the word "marriage" for straights lacks sufficient raison d'être to make it through the grueling adoption process.

P.S. Eugene Volokh notes another drafting problem with the new text: states will be unable to grant civil unions through constitutional amendments (as opposed to legislation). My question: what happens, then, in states where the constitutions have been amended to prohibit CUs? Will any democratic attempt to undo the damage (presumably decades hence, when the prevailing bigotry has faded) be undone by the FMA? Just another example of why this unneeded "fix" to a non-existent "problem" deserves a place in the trash heap of history.

Update: The WaPo has a political analysis on the amendment ruckus. Basically, no amendment can pass, but Republicans will use the subject, including a possible House vote in late Summer, to make political points for the November election.