The reactions to my post on gay marriage in the courts were quite interesting. Let's start with Liz's comments. First, she makes the very interesting point that state courts interpreting state constitutions may be where the action is in the short term. Of course, judicial resolution at the state level inevitably implicates federal constitutional questions, most notably whether the free faith and credit clause will require, say, Alabama to recognize a same-sex marriage performed in, say, Massachusetts. Second, her point that "allowing gay partnerships in some form had popular appeal" actually gives me hope that the issue will be resolved via the political process. I think the ground is shifting on this issue faster than a lot of people realize. I'd be willing to lay a long bet that more than half the states have some form of partnership law within 5 years.

Bruce wrote:

The question of "marriage" is purely a religious one, as I see it. It's between you and your church.  If your church does not recognize your union, then you can either try to change its mind or find a new church. As far as the government is concerned, there is no reason for it to care whether your relationship is called a "marriage" or a civil union. ... I think Stephen would agree with this, but I would appreciate his thoughts since he is a legal scholar who comments often on religious matters.

I do agree, although I wonder whether the logical import of that position would be a de facto requirement of two ceremonies: a civil ceremony that the state would recognize and then a religious ceremony (for those who want one) that would have no legal import. Since that's what France does, shouldn't there be a rebuttable presumption against it? [insert smirk here] Seriously, my friend and fellow law professor Larry Ribstein wrote a very interesting paper on this issue entitled A Standard Form Approach to Same-Sex Marriage, in which he argued that:

This paper attempts to find a path through the recent constitutional thicket regarding same-sex marriage by analogizing marriage to a business association. This analogy provides a way to evaluate the justifications for traditional rules banning same-sex marriage - specifically, by emphasizing the advantages of providing distinct standard forms for different types of relationships. Under this approach, the same-sex marriage prohibition might be justified by the need to preserve the precise boundaries of the marriage standard form. The business association analogy also highlights what is at stake in state laws prohibiting same-sex marriage, and therefore helps determine the appropriate burden to impose on defenders of the prohibition. Like business associations, the validity of a marriage generally is governed by the law of the state in which the marriage is celebrated. This offers the potential of allowing couples, including same-sex couples, to select not only from among the standard forms in a particular state, but also from the menus of standard forms offered by various states. This analysis helps assess the infringement on liberty involved in a state's prohibition of same-sex marriage. Moreover, as with business associations, permitting the interstate market for standard forms to operate would provide an evolutionary approach to marriage laws that is preferable to the Court's prematurely taking sides in the marriage debate.

Finally, among Eric's thoughtful comments, he asked re Brown:  Can you honestly say that if you could go back in time, you would prevent it from happening? Of course not. But that doesn't solve the problem. Andrew Jackson wrote in his message vetoing the Second Bank of the United States:

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government, The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

Likewise, here is what Lincoln said about Dred Scott:

If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

Here then is the perennial problem: How do we decide which cases are like Brown and which cases are ones like Roe, which we all seem to agree decided an issue that should have been left to politics? I think that's a very difficult question.

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