This is a man worth listening to:
The chief casualty in the struggle over same-sex marriage has been the American constitutional tradition. Liberals and conservatives -- judges and legislators -- bear responsibility for this sad state of affairs.
Twenty states have constitutional amendments banning gay marriages; many more are in the offing. On the ballot this fall in Virginia and five other states will be proposed constitutional amendments banning gay marriage. Passage of the amendments is all but foreordained, but the first principles of American law will be further endangered...
... These are no small risks, and present trends are not often more sound than the cumulative wisdom of the centuries.
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. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena.
Jay was often mentioned as a possible supreme court nominee, and I think after reading his piece you can see why he's a man who would be acceptable to the reasonable people on both sides. In his article, however, he overlooks a constitutional power of the congress that, like a Letter of Marque, isn't used much anymore: impeachment. I think it would be far better for legislatures to hand out a few pink slips to uppity judges through impeachment (on the grounds of make-it-up judges violating their oaths of office) than to tinker with the constitution. Jay's point that such constitutional jury-rigging (no pun intended) only gives more power to future judges should be taken very soberly.