It is said that justice is equality, and so it is, but not for all persons, only those who are equal.

--Aristotle

In overturning the California voters' ban on gay marriage, the state's high court argued that homosexuals are a special class, somewhat similar to blacks and women, and deserve special judicial scrutiny for the protection of their rights. At the same time the court insisted that gay marriage must be allowed because gays deserve, no less than anyone else, the equal protection of the laws.

This argument is dubious on two counts. First, blackness and femininity are outwardly identifiable characteristics. Homosexuality generally is not. True, some homosexuals adopt exhibitionistic ways of walking and talking which perhaps serve as a kind of signal to others similarly inclined. But gays can "pass" for straight in a way that blacks can't typically pass for white or women for men. Moreover, blacks were slaves and suffered historical oppression in a way that neither women or gays can match. So the idea that these groups are the "new blacks" is an insult to blacks. Finally whether there is an innate disposition to homosexuality or not, it's hard to deny that homosexuality constitutes a choice and a lifestyle. Whatever the orientation, one still has to choose to act on it. By contrast, blacks and women don't have any choice because race and gender are not a lifestyle.

Now let's turn to the issue of equal protection. Clearly this means that people who are similarly situated should be treated in the same way. So men and women, blacks and whites, straight people and gays, all have the right to vote, the right to speak their mind, and the right to marry. But gays already have the right to marry, just like the others. They have the right to marry adult members of the opposite sex. What they want, however, is the right to marry members of the same sex. This, however, is not a right enjoyed by anyone else. In other words, gays are not asking to be treated the same as everyone else. They want special rights that no one else claims or enjoys. They want to rewrite the definition of marriage.

Put the matter another way. States, acting through their representatives and reflecting the values of the voters, have the constitutional authority to define what marriage is. Traditionally marriage requires: a) two persons b) both of them adults of legal age c) unrelated to each other and d) one male and the other female. Now here are some interesting possibilities. A 10 year old demands the right to marry, charging that the age requirement discriminates against him. Or a fellow wants to marry his sister, contending that the incest prohibition violates the equal protection clause of the Fourteenth Amendment. Or a Muslim seeks four wives, asking why polygamy among multiple "consenting adults" should not be allowed the same legal status as the traditional two-person arrangement. In more imaginative scenarios, a fellow might want to know why the marriage definition is so species-specific. This guy wants to marry his dog on the grounds that "I love my dog and my dog loves me." Why don't all these people have valid equal protection claims under the constitution?

The point here isn't that gay marriage is indistinguishable from polygamy or child-marriage. Rather, it is that gay activists want to dislodge one of the definitions of marriage but retain all the others. They want to move one of the goal posts but not the rest. But how can one part of the marriage definition be discriminatory under the laws while the other parts are not? If the male-female requirement violates the equal protection clause, so must the other requirements which also exclude classes of people. If gays are a special category, why aren't Muslims and Mormons also a special category? It seems that gay activists want a form of "equal protection" for themselves but not for other groups.

Neither equal protection nor antidiscrimination is a real issue here. Judicial tyranny is the issue. Isn't it interesting how even the most naked imposition of power must make the pretense of having justice on its side?

It is the essence of democracy that people should be able to decide the moral rules that govern the nature of a community. If people don't have that power, then they are living under an autocracy.

True, this majority rule is not unlimited. It is limited by what the government has the power to do. Consequently the majority cannot, in general, vote to seize the homes and accumulated savings of rich people. Leaving aside exceptional cases, government cannot mandate how parents how should raise their children. These kinds of power lie outside the scope of government in a free society.

Majority rule is also circumscribed by individual rights. But these are the rights clearly specified in the Constitution. A majority of citizens cannot prevent an individual from voting because voting is a basic right, as is the right to freedom of speech and freedom of religion, and so on. The state is constitutionally prohibited from undermining these enumerated rights.

Now the high court of California has made gay marriage into a right that is immune from restriction by the majority of citizens in the state. We already know what California citizens think about gay marriage: they oppose it. A referendum outlawing gay marriage was passed with the support of the state's voters.

How, then, can a court invalidate the referendum and over-rule the will of the people? Basically through a kind of legal fraud. The court has to pretend that there is a right to gay marriage even though it is nowhere evident in the state constitution. Read the constitution, hold it up to the light, squeeze lemon juice on it--you won't see a right to gay marriage in there. It is simply not an enumerated right, nor is it a right that can be clearly derived from other enumerated rights.

Here we see liberal jurisprudence in its arrogant willingness to subvert the will of the people in order to achieve its ideological agenda. This has nothing to do with whether you think gays should be allowed to marry. If you think they should, go ahead and vote for candidates who support gay marriage. But you should still oppose the manufacture of bogus rights in order to reach a result that democracy would not by itself allow.

Attempting to insulate themselves from the political fallout, Hillary Clinton and Barack Obama have both said they oppose gay marriage. The real question, however, is what they would do to express this opposition. What would a President Obama do, for instance, to protect traditional marriage? Here the answer appears to be: nothing!

In the past Democrats have always appreciated courts doing their dirty work when it comes to issues like abortion, pornography, prostitution and gay rights. This way Democrats can advance their permissive agenda without having to take political responsibility for voting against the values of a majority of voters.

I know that there are gays who desperately want gay marriage, and in a way I'm happy for them. But at the same time I'm sad for constitutional democracy, which suffered a grievous blow at the hands of the California high court.

According to the AFP, the California Supreme Court today overturned the ban on same-sex marriage, calling domestic partnerships a poor substitute for marriage:

In an opinion that analysts say could have nationwide implications for the issue, the seven-member panel voted 4-3 in favor of plaintiffs who argued that restricting marriage to men and women was discriminatory.

There's a precedent for California starting a domino effect. David Cruz, a law professor at the University of Southern California and an expert in constitutional law, says in the AFP article:

"In the 20th century California was the first state to strike down laws against inter-racial marriage. They did that 19 years before the US Supreme Court got around to it."

So, soon (er, in 19 years) we could be a nation that grants gay couples the same rights as straight ones. How does it feel?

Mike Huckabee invoked the slippery slope theory when he warned last week that gay marriage would eventually lead to bestiality. "Eventually"? Obviously Mike hasn't spent much time in New York...

Musician John Rich, of country duo Big and Rich, said on the Steve Gill radio show (loooong MP3 clip here) that he supported Fred Thompson for president because he agreed with him on issues like gay marriage. Rich said of the institution:

"I think if you legalize that, you've got to legalize some other things that are pretty unsavory. You can call me a radical, but how can you tell an aunt that she can't marry her nephew if they are really in love and sharing the bills? How can you tell them they can't get married, but something else that's unnatural can happen?"

Ah, yes, the "it will lead to incest and/or bestiality" anti-gay marriage argument. It's been a while since that old chestnut was trotted out.

In an emotional speech, San Diego Mayor Jerry Sanders says he's changed his mind about gay marriage. He says he did some soul-searching and decided to "lead with his heart" and "take a stand on behalf of equality and social justice." What prompted the change? His daughter is gay and he wants her to have the same rights for love and happiness as anyone else.

Yeah, yeah, yeah - more Larry Craig, but this guy is fun. I saw this video where he called Bill Clinton a "bad boy, a naughty boy" - just watch, it's pretty amusing.

One can only understand the depths of Craig's hypocrisy by his voting record and how he fought to keep gay people in their respective closets.

- Voted YES on prohibiting same-sex marriage.
- Voted NO on prohibiting job discrimination by sexual orientation.
- Voted NO on expanding hate crimes to include sexual orientation.
- Voted NO on adding sexual orientation to definition of hate crimes.
- Voted YES on constitutional ban of same-sex marriage.

Keith Olbermann provides a word-for-word "Dragnet" style re-enactment of the police report.
Great Stuff, tip to C&L for the clip.

How could I not hope that CNN's Democratic debate tonight would fail? The foundering all-news network spent weeks touting their joint venture with YouTube as "first ever," "revolutionary" and "never been tried before" - an "experiment" on par with democracy itself!

The debate itself was treated as a news story - and not just any news story. The TOP news story of the day. The clock in the lower right corner of the screen (counting the hours and minutes till showtime!) is now a staple of awards show programming, of course. (Mind you, had CNN asked me to do red carpet coverage I would have been there in a heartbeat. "Candy Crowley, who are you wearing?!")

Why questions from ordinary Americans is so "groundbreaking" is beyond me: Politicians have participated in call-in shows like "Larry King Live" for years. They've attended town hall meetings. I even have a videotape of Hubert Humphrey addressing the tough questions of Minnesota dairy farmers from the 1960s. The only difference here is CNN had to roll in footage of the questioners instead of simply cutting to a questioner in the audience. Oh, that newfangled technology! Those crazy computers!

The whole thing smacked of a stodgy and creaky ratings-challenged network desperately trying to talk to the "young people." Reminiscent of the New York Times' much-mocked "grunge glossary" in 1992.

Plenty of people will mock the headline of The New York Times' polling piece: "New Poll Finds That Young Americans Are Leaning Left." They shouldn't. What's laid out in the piece isn't all that obvious.

The results of the poll are interesting and confirm one thing I've learned from visiting lots of college campuses (other than that I didn't have nearly enough fun when I was actually in college): young adults are energetic, discerning, healthily skeptical, sometimes pessimistic - but not cynical. They don't skulk around with permanent sneers on their faces. They don't lack faith in anything higher than themselves. They don't automatically suspect that authority figures are motivated by the worst in human nature.

The poll jibes with much of conventional wisdom: On a host of issues, including immigration and universal health care, younger Americans are to the left of the country at large. They're already more favorable to gay marriage than the rest of America and moving steadily more so in that direction. (This makes sense since opponents of gay marriage have yet to offer any sensible objection beyond fear of cooties.)

I didn't think there were that many straight Anglicans in Canada! But look. Our whimsical neighbors to the North have shown that they may yet lead the United States in something. The Anglican bishops of Canada have voted to defeat a proposal to allow the church to bless same-sex unions. True, the vote was 21 to 19, and it came only after the issue threatened to split the Canadian church and also to sever Anglicanism in the West from the worldwide Anglican communion. Even so, the decision of the Canadian prelates is significant.

Remember Polygamy? It was a huge political issue in the 19th century - and the premise for a crappy HBO series in this century. Prohibiting it in Utah way back when was a condition for statehood. Indeed Congress outlawed it in 1890.

Now it's back in the news with Mormon Mitt Romney running for president. He says he abhors the practice and wants to assure voters that he has no intention of bringing it back.

But my co-blogger Dinesh D'Souza says that it's coming back, whether we like it or not - courtesy of gay marriage. Without saying so explicitly, he cites the "slippery slope" principle.

I love the slippery slope principle. Without it cable news would be a snooze-fest. It's the pretext for all the best CNN-MSNBC-FoxNews knockdown drag-outs.

From the right:
"Don't you see? Once you legalize medical marijuana, then you're going to have to legalize cocaine for 'clinical reasons.' Then our children will start shooting up at recess - and our schools will become cartels!"

From the left:
"Just you wait. It starts with the Patriot Act and the government looking at our library records. Then the government will have cameras in our bedrooms - and inside our bodies! I'm sorry, the whole thing's really scary ... Orwellian. I'm building my own secret annex to hide from these Nazis."

At its best this fearmongering is kind of amusing. But it's still fearmongering. I don't like fearmongering. Social policy driven primarily by fear usually ends up hurting more than helping, dividing more than uniting.

Dinesh and I debated the polygamy-gay marriage connection at a forum at Brigham Young University's GLBT Center in 1994. Here's what I said then: