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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, June 16, 2010 ::
    Today, closing arguments were heard in Perry v. Schwarzenegger, the "Proposition 8" case in federal court in California. Review the live-blogging by the National Organization for Marriage here.

    As he has throughout the trial, Judge Vaughan Walker left no doubt where he stands, approaching the issue as if marriage had been a gender-irrelevant practice from time immemorial until a bunch of bigoted California voters came along and, on the crest of the Obama election, deprived same-sex couples of their previously unquestioned right to marry.

    Those asserting that this view of the world is, with all due respect, a bit bizarre, were continuously saddled with the burden of proof, the burden of producing expert witnesses in quantity to match the other side's, despite the fact that publicly opposing ssm is a career-ender in many milieus in which potential experts work, and the burden of showing peer-review for their experts' work, which is not the practice in the 9th Circuit -- and in any event should not be necessary to assert the proposition that voters have the right to legislate that marriage shall be what marriage has always and everywhere been taken to be, which is all that is necessary for defenders of Prop. 8 to win this case.

    (I was going to say for California to win this case, but California is not seriously defending it.)

    Obviously Judge Walker will rule that the Equal Protection Clause of the 14th Amendment -- enacted, like the rest of the Civil War Amendments, to bring civil equality to newly freed slaves -- requires that the most revolutionary social experiment in human history be carried out instanter, and that voters be deprived of any authority to stop it or even slow it down. The 9th Circuit will uphold this decision with unctuous delight; and then....

    "Fundamental rights" decisions of the U.S. Supreme Court come in two varieties: neatening-up decisions, that merely remove statutes that very few people want to enforce anyway, such that even if the Court has to stretch its authority to reach its desired result ("emanations from penumbras" is still a punchline, after all), there is really no constituency for overruling such decisions. In this category are Griswold, Moore v. East Cleveland, and I'll even add, despite its pompous absurdities and legal imprecision, Lawrence.

    Then, on the other hand, are the "fundamental rights" decisions that attack statutes that many, many Americans are still very serious about enforcing. These decisions do not settle anything, and they cause a huge drawdown of the Court's legitimacy. Roe is the most obvious example; so too is Casey, which, in the very act of whining about the need to maintain the Court's legitimacy, drained it further.

    There are few if any other examples, though, b/c the Court has gotten better at sensing the danger. For example, the Zeitgeist may be running in favor of physician-assisted suicide; some states even permit it by statute; but other states prohibit it by statute, as the Common Law did, and many people still want to enforce those laws. They are not (like anti-contraceptive laws or anti-sodomy laws) anachronisms or merely symbolic. So, faced with an asserted "right" to physician-assisted suicide in Glucksberg, the Court gingerly noted that the debate on this issue is taking place in the states -- and left it there.

    Now, Ted Olson would not have undertaken the Perry case if he didn't think Justice Kennedy's opinion for the Court in Lawrence was a signal that the ssm coalition is now in place on the Court. And certainly Justice Kennedy will make up his mind based on his personal notions of grand statesmanship, not on any consistent legal theory, whether of rights or of constitutional interpretation. But the grand statesmanship in question could very well favor a Glucksbergian solution, rather than the Court's taking on a new Roe.

    Or not. And if not, I have no predictions. Academics senior to me, and activists with more experience, have written of a potential loss of legitimacy, not just of the court, but of the regime. I happen to think that if we survived 1800 and 1860-61, we'll get through this too. But with the survival of democracy in certain countries now drawn into question as a result of budget deficits, and with such budget deficits mounting here too, I don't think yanking another major moral issue out of the range of American democracy and into the ether of elite diktats will be healthy for that democracy. At all.

    :: David M. Wagner 9:28 PM [+] ::

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