Dale Carpenter is carefully reading the Prop 8 ruling:
My concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. If that’s right, it magnifies the potential for unintended and harmful consequences for gay-rights claims even beyond the issue of marriage. Think of a possible (but milder) anti-SSM version of Bowers v. Hardwick, which had consequences far beyond the constitutional affirmation of sodomy laws...
The decision, as I read it, relies directly or indirectly upon every prominent constitutional argument for SSM. One could say this is a strength of the decision. If a higher court doesn’t like one reason, it might accept another. But it is also a weakness of the decision, from a gay-rights litigation perspective, since it invites a higher court to address them all if it decides to reverse the result. A sweeping victory becomes a sweeping defeat.
I understand Dale's worries and his post is well worth reading closely. But even he believes a truly minimalist position would not have worked. And look: if the Supreme Court does not find a right to civil marriage for all citizens in the Constitution on equal protection or due process grounds, then we will be back to the state legislatures. What I think Dale under-estimates is the educative merits of this process, the reason that lies behind it, and the simple fact that this kind of inequality is incompatible, in my view, with a republic that treats equal protection and rationality seriously. And since this is our shared view, why not speak it?
Conviction matters. Conviction changes the world. Conviction has changed the world. If we had more of it, we could change America.
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