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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 ::
    I'm going on a weekend-long retreat this afternoon, so I can't promise to comment on the California same-sex marriage decision until long after everyone else in Blogistan has done so. Try to live with that disappointment. Besides, the first five or so moves in the argument, either way, are by now familiar. If the California court manages to say something new, either way, that will be worth commenting on next week.

    This report from ABC raises the possibility that the court could split the difference by striking down the state's current referendum-enacted one-man-one-woman law but punting the rest of the issue back to the legislative process. It would thus evade a charge of judicial activism and end-running the people's will, while at the same time, I would suggest, setting up a dynamic whereby the legislature would act under the virtual certainty that its work would keep getting struck down until it "gets it right."

    :: David M. Wagner 11:08 AM [+] ::

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