“Neutral Principles”

Publius changes his mind about the court's role in introducing marriage equality:

...the Warren Court’s race decisions were admittedly a departure from traditional precedent and methodology.  But the injustice of American racial discrimination demanded a more aggressive response.  The courts acted – and scholars later supplied these principles (things like anti-subordination, which called for scrutiny of laws discriminating against racial minorities).

And that brings us to gay marriage.

The fundamental issue is whether discrimination against gay couples is so fundamentally unjust – so self-evidently repugnant to basic human dignity – that it justifies a more aggressive judicial response.  In other words, is today’s discrimination in the same category as the racial discrimination that led to Brown and its progeny?  That's the million dollar question.

And I say yes.