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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, August 04, 2010 ::
    "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

    To paraphrase a famous rebuke by Orwell to a great but formerly reckless gay poet, this could have been written only by a judge to whom marriage is, at most, a word. The judge can be only partly excused by the fact that he is the product of a society for which marriage has been at most a word for some four decades, give or take, and that the same society is full of go-along time-servers who seem to attain federal district judgeships.

    It is too obvious to point out -- and was therefore of no interest to Judge Walker -- that marriage licenses are denied all the time to persons with certain diseases and to persons within certain degrees of consanguinity, all without "singling out people carrying disease x" or "persons with y familial relationship" for constitutionally invidious treatment. (Unless either or both is the next decade's constitutional cause celebre.)

    Marriage is the way society takes the fact that people are going to have love affairs, with or without the state, and, out of that fact, creates a system for seeing as well as possible to the well-being of the children that are going to result from those love affairs. Love affairs that by nature are not going to produce children are not within the state's ken. We don't have big poofy celebrations, and a big bureaucratic state licensing system, when two people become friends, nor when two people (one may disregard gender for purposes of this statement) start dating. And really, that's good, b/c friends and daters have not yet publicly taken on obligations with which the state should concern itself. (But see Prof. Ethan Leib, who thinks friendships should receive, and could benefit from, "more legal attention.")

    I approve today's comments by blogger Ace on this point:
    The state does not have an interest in propagating love. It has an interest only in fostering stable families (meaning: with children). Straight marriage is directly implicated by this interest, since most married couples have children. Gay marriage is irrelevant to this interest, since few gay couples have children (and none, of course, naturally by the couple itself).
    This is a Theoden-at-Orthanc moment. Saruman can still sound plausible, even rational, even while he calls "serpent" those who don't buy his lies. And that includes us. We do not believe that Judge Walker listened to the case put by Charles Cooper, or that he did and found it irrational.

    But he matters little now anyway; even the Ninth Circuit is only a sideshow. The Supreme Court (meaning perhaps Anthony Kennedy personally) will have to decide whether it did such a good job in Roe and Casey "calling the contending sides" to consensus on an uncompromisable issue that it should try to do it again, or whether a Glucksbergian patience with the political process -- in the obvious absence of constitutional text or history supporting Judge Walker's decision, or the likely 9th Circuit decision celebrating it -- will best do what the Casey plurality claimed (however improbably) to be most interested in: preserving the nation's belief in the Supreme Court as a venue in which law and not politics prevails.

    :: David M. Wagner 8:25 PM [+] ::

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