Despite the media hoopla, this is not the first case in which a federal judge has imagined and ruled that our Constitution requires same-sex marriage. A federal judge in Nebraska ruled for gay marriage in 2005 and was overturned by the U.S. Court of Appeals for the Eighth Circuit in 2006.
The Proposition 8 case on which the Ninth Circuit's Judge Vaughn Walker ruled Wednesday was pushed by two straight guys with a hunger for media attention, lawyers with huge egos who overrode the considered judgment of major figures in the gay legal establishment, thinkers who feared exactly what we anticipate: the Supreme Court will uphold Prop. 8 and the core civil rights of Californians and all Americans to vote for marriage as one man and one woman.
Judge Walker's ruling proves, however, that the American people were and are right to fear that too many powerful judges do not respect their views, or the proper limits of judicial authority. Did our Founding Fathers really create a right to gay marriage in the U.S. Constitution? It is hard for anyone reading the text or history of the 14th Amendment to make that claim with a straight face, no matter how many highly credentialed and brilliant so-called legal experts say otherwise.
Nevermind the ad homs (ego-driven straight guys!) and the beggings of the question (proper limits of judicial authority!), I don't understand the last sentence. Allow me to reconstruct:
- Many highly credentialed experts, with the proper knowledge and experience, assert x.
- no one can seriously claim x.
Pardon my confusion, but it seems like just the right kind of people–qualified straight people with straight faces–have made the assertion, I think that means it has some initial plausibility.
Now of course, the controversy might be how one interprets "x" in my reconstruction. And this is where Ms. Gallagher hollow mans–I don't think anyone has made the claim she alleges ("created an [enumerated] right…."). So no one, with a straight face or otherwise, is arguing that the COTUS (anyone ever say that? They should) utters the phrase "gay marriage." Of course, as far as I know, it doesn't say "marriage" either.