I think we can agree that the only reason “anti gay marriage” policies were never challenged in the S.C. was because, under the only-recently-overturned judicial and popular consensus that there was no constitutional right to sodomy, it would have been a bit of a non-sequiter to argue that there is, however, a constitutional right to recognition of a union based in part on a possibly-illegal “sodomistic” relationship. We probably agree that if (with no change in the Fourteenth Amendment) the S.C. can suddenly “find” the right to sodomy, it is possible (though not necessary) that it could “find” a similarly-implied right to marriage for practitioners of sodomy. In fact, depending on the court’s make-up, I’d probably wager on this happening eventually, under the current mode of S.C. jurisprudence and political inclination.
That is why I oppose the type of judicial “reasoning” that “finds” constitutional rights where none were manifestly intended by the Framers, recognized by generations of jurists or legislators, nor intended by the people who ratified the Constitution and amendments. The slippery slope to which I refer is not, specifically, the slippery slope toward marrying sodomites; it’s the slippery slope (long since embarked upon) toward allowing five doddering and not-long-for-this-world jurists to feel good about themselves by creating out of whole cloth “rights” not even implicit in the Constitution. This is especially inappropriate and not necessary (on my view, mind you) when Constitution clearly tells you how to properly go about creating such new rights – viz., through the process of drafting and passing laws and Amendments, not playing to some unelected Solon’s desire to leave a legacy that the law professoriat will coo over. Now . . . all that’s intentionally couched in argumentative language (so was your reference to such opposition being based only on emotion and not reason), but if you want to strip away the adjectives and adverbs, you’ll find a rational, and far-from-unconventional version of constructionist constitutional interpretation and jurisprudence.
Here’s a funny thing: I’d be equally upset if the Supreme Court pulled out of its hat a “constitutional right” for a fetus not to be aborted – which wouldn’t be much more of a reach, right? I mean, all persons are entitled to “equal protection” and “due process” and “life, liberty, and the pursuit of happiness?” right? Except such an argument would be bogus, not least because I’m the first to admit the Framers probably had no notion of any embryo or fetus as a cognizable “person.” Now, there’s no danger of any Supreme Court in our lifetimes finding a “penumbra” that creates an affirmative fetal right to life, nor should there be – but at least the pro-life crowd understands this and has never tried to enact its utlimately-preferred policies (no abortions, anywhere) through solely judicial means. They had the decency to proceed under the (unpassable) Human Life Amendment. If a “gay marriage” amendment is similarly unpassable, look to your fellow citizens for the fault, not to the courts or contitutional constructionists. YMMV on this, obviously, but it’s a coherent position.
I cannot agree on you on the equal protection/convolutedness thing. Are you, in fact, taking the position I ridiculed, i.e., that “equal protection”=“same identical rights for everyone regardless of whether similarly situated?” If not, and I didn’t think you were, why is it necessarily “convoluted” logic to propose that “The existing marriage laws satisfy equal protection because they guarantee equally to everyone the right to one (not two concurrent) marriage(s), which marriage is defined as the union of two (not three) adult (not child) human (not non-human) beings of the opposite (not same) sex.”
Why does that last part of the law’s definition make the equal protection defense objectively more convoluted than the fact that neither existing heterosexual marriage, nor contemplated “gay marriage,” provides a mechanism for a legally-sanctioned bigamy or menage a trois?
