As we await Judge Vaughn Walker’s ruling inventing a federal constitutional right to same-sex marriage, I’d like to highlight Jonathan Rauch’s op-ed in the New York Times from a month ago. Rauch is among the most prominent advocates of same-sex marriage, and, as he discusses in his op-ed, recently entered into a same-sex marriage. But he has the intellectual clarity and integrity to recognize that the anti-Prop 8 case should fail (as well as the courage to say so):
[T]he argument for upholding California’s gay marriage ban has merit — not because the policy is fair or wise (it isn’t) but because it represents a reasonable judgment that the people of California are entitled to make.…
Whatever the activists on both sides say, nothing in the Constitution requires the Supreme Court to short-circuit the country’s search for a new consensus, either by imposing gay marriage nationwide or by slamming the door on it with an aggressively dismissive ruling. Sometimes the right answer for the courts is to step aside and let politics do its job.
(Unlike Rauch, I don’t think that Elena Kagan’s confirmation testimony provides any signal that she may vote against inventing a federal constitutional right to same-sex marriage. As I’ve discussed, I think that her overall record strongly indicates that she will vote to invent such a right.)