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By Bill Altreuter

I'm pleased with the District Court's decision in Perry v. Schwarzenegger--most right-thinking people would be. I'm glad that Judge Walker's decision is fact intensive. Everybody knows it's going up, and the Reagan-appointed Walker has done the Ninth Circuit and the Supreme Court a solid service by laying the record out there for them. It is worth noting that Judge Walker's job was made easier by the failure of the proponents of Prop 8 to put in any meaningful proof, or even to make a coherent argument.

Here's the part I don't understand: how come the people who are now all howling about this result view this as the creation of a "new right"? This is not about creating rights-- the question before the court was whether Prop 8 violated the plaintiffs' due process and equal protection rights. This is not about whether the States have the right to define and regulate marriage; it is about whether the way that California went about defining and regulating marriage passes constitutional muster. No new right was created here-- all that happened was that a law that discriminated against a class of people without a rational basis was overturned. Maybe the problem is "rational"-- I'm not seeing a lot of rational discussion from the people who are unhappy about this, just hand-waiving about polygamy and bestiality. If the best you've got is a states rights argument then give it up-- you're about sixty years off the pace.

Full post as published by Outside Counsel on August 06, 2010 (boomark / email).