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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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    :: Wednesday, April 08, 2009 ::
    Iowa? Vermont?

    First, if you haven't already, read Eugene Volokh's post about slippery slopes, inspired by the Iowa decision. Some slopes are slippery, others aren't. This one is, regardless of past outrage by editorialists and gay activists over the other side's "absurd" slippery-slope arguments.

    I would just add: the Iowa decision and the Vermont were timed to influence, and to provide "emerging consensus" cover for, the California Supreme Court, which will use these events to support a finding that Prop 8 was a "revision" and not an "amendment," and hence not enactable through the initiative process. Not convinced? Just remember where you read it first.

    So, what's the next step? What, you had to ask? (For future reference: the usual euphemism for reparations is "transitional justice." Recognize it when you hear it.)

    And the religious liberty angle? Maggie Gallagher sums up the emerging fate of any non-supporter of same-sex marriage who doesn't want to go into the anti-same-sex-marriage biz full time (with all the litigation and security costs that this will entail):
    The deal they will be offered by the government and the culture dominated by same-sex marriage is: Mute your views on marriage so you may continue your other good works. Many good and brave people, to preserve their ability to save lives in Africa or to protect the poor in this country, will take that deal.

    I'm not here to criticize him or them -- merely to point out the underlying power of the movement that can get a Baptist minister to recant about marriage on national television. [The ref is to Rick Warren, who now insists he is not an anti-gay-marriage "activist."]

    Take it seriously. On a religion and the law list-serve, the widely respected UCLA law professor Eugene Volokh, who favors same-sex marriage, took time out to acknowledge that the religious liberty implications of same-sex marriage are not "scaremongering."

    "It seems to me plausible that judicial decisions banning opposite-sex-only marriage rules would likewise come to be extended -- by legislatures or by courts -- to go beyond their literal boundaries (a decision about government discrimination) and instead to justify bans on private discrimination," Volokh wrote. "It seems quite likely that they will spill over into diminishing any constitutional (or Religious Freedom Restoration Act-statutory) claims to engage in such discrimination by private entities, including Boy-Scout-like organizations, churches, religious universities and other institutions."

    Me -- I've got quite a few crusades going. I want to separate federal powers, keeping as much lawmaking as possible in Congress and out of the judiciary, and as much independence as possible in the executive. I want to end the unjust regime of withholding legal protection from human children because of their gestational status. I want to learn more and teach more and political philosophy and legal history. I want to protect and preserve marriage, and you know goddarn well what that is. And I want to keep going to the opera, whether people who recognize me there like it or not. I can't back down from any of these.

    :: David M. Wagner 2:49 PM [+] ::

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