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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, May 15, 2008 ::
    Gay marriage has been decreed for California by its Supreme Court; the decision is here. Highlights I've had time to take in so far:

    * Sexual orientation is a suspect classification for Equal Protection purposes in California.
    * Equal benefits are not enough: the word "marriage" has to be thrown in too, otherwise same-sex couples' feelings will be hurt (the technical term for this, "dignity and respect," is borrowed from Dworkin), and this is an unconstitutional injury.
    * Tradition is a source of suspicion, not of authority: because we "used to" think interracial marriage was bad, and we "used to" think many jobs were out of bounds for women, the long-establishedness of opposite-sex marriage counts against it.
    * Marriage is about the adults primarily; children are an afterthought.
    * Marriage is about relationships, not about generations.

    Obviously the court did not, as I suggested in the post below it might, avail itself of any split-the-difference options. Full speed ahead, we know what's right, we have the power and we'll use it.

    If this isn't the "judicial activism" issue on which McCain can win the presidency, then he probably can't win it. Which may well be the case.

    :: David M. Wagner 1:21 PM [+] ::

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