Posted by lex, on August 5, 2010
The Volokh Conspiracy’s Dale Carpenter has the least emotionally freighted discussion of the ruling:
(Finding) a federal right to same-sex marriage itself, Walker leans on not one but two prominent constitutional arguments. First, he says that the fundamental right to marriage protected by the Due Process Clause includes the right to choose the sex of one’s mate. That’s because, he writes, sex-based classifications in marriage have long since been stripped away. The ban on same-sex marriage is the vestige of discredited and long-abandoned sex discrimination in marriage.
Few courts upholding a right to SSM have used a fundamental-rights rationale (not even the original SSM decision, Goodridge, did so). It’s an aggressive claim, especially given the composition of the federal courts and the Supreme Court. I see little enthusiasm in this Court for expanding fundamental rights. If the Ninth Circuit and/or Supreme Court decide to reverse Walker’s ruling, they will be more likely to deal with this issue in a way that will set broader precedent. A minimalist decision for SSM by Walker could have left this matter undecided and thus would not have forced a higher court’s hand.
Me, I’m frankly tired about the whole argument. Rarely have such vast quantities of ink, passion and treasure been spilt on a subject of such lightly leveraged secular symbolism.
Become, grow, flourish, rut,
procreate, decline, perish. Six out of seven ain’t bad.
So long as it’s only seven.