I agree that the time to pass an Amendment has come and gone. Had the Sup Court imposed gay marriage back in the 90s, then I think the votes would have been there to pass an Amendment. That we as a society have come to the point where we believe the only legitimate remedy to a blatantly unconstitutional decision by the Sup Court is to pass an Amendment or get the Court to reverse itself is another matter altogether, but the fact is that we live with judicial supremacy.
In hindsight it might have been wise to call out all of the Republican and Democrats who voted against the Federal Marriage Amendment for the stated reason that they didn’t think it was necessary. Remember in the debates, many no votes said that they oppose gay marriage, but they claimed to see no reason to pass a FMA because the federal courts were letting the states handle the matter. How many were being honest, and how many were bluffing? So it might have been a good idea for proponents of traditional marriage had instead got behind Senator Hatch’s alternative Amendment, which did not define marriage but instead explicitly empowered the states to handle the issue. Of course that would not have helped where imperious state courts have imposed marriage and the people have not had a chance to vote, but it would have probably protected the majority of the states which have passed state marriage amendments.
I think at the time too many conservatives were either too confident of their ability to eventually pass their preferred FMA, and/or they had a principled objection to what they saw as conceding defeat on having a national standard for marriage.
For me, the main problem with Hatch’s alternative was that by passing an Amendment that basically singled out an issue as being beyond the power of the Sup Court, it sort of lends credence to the bogus view that w/o such an explicit Constitutional exclusion then the Courts rightly have jurisdiction over any and everything else. But since we’ve long since crossed that bridge, since all other branches of govt have meekly accepted the Sup Court’s outrageous power grabs, then perhaps it would have been wise to get behind a lesser Amendment of the type Hatch proposed.
“...it sort of lends credence to the bogus view that w/o such an explicit Constitutional exclusion then the Courts rightly have jurisdiction over any and everything else.”
That’s a good point. Another one that sort of goes along with it is if you start the amendment process, it will likely be for more than one issue, and not all all of them to the liking of conservatives. If it’s gotta be an amendment, and it might very well have to be, there’s the risk of other things getting in at the same time.
Freegards
Noting in passing your pessimism on the point, nevertheless the Constitutional language exists in black letters, that gives Congress the power to limit the federal courts' jurisdiction by statute.
That should be sufficient to overcome any liberal justices' waffles about "Necessary and Proper" and "General Welfare" and Marshall's various opinions on an expansive review power.