We Can't Not Talk About It

A federal judge's ruling in favor of same-sex marriage on U.S. Constitutional grounds invites chatter.  So chime in.

I spent most of the day traveling home yesterday for a family wedding here in Wisconsin, so I'm going to defer my full take on the matter until I've had time to take a look at the opinion itself.

My initial thoughts: 1) I'm not at all surprised, 2) I think there's enough in play for Justice Kennedy to affirm, ultimately, with a majority of the U.S. Supreme Court [although I still wonder how his Catholicism will feed into this matter], 3) the decision seems to be "maximalist" in that it reached more broadly than it had to, and 4) I fear that the ruling and any affirmations on appeal could lead to a major, regrettable backlash against gay people, especially given its high profile, its ambitious impact on the powers of state electorates, and its unmistakably antimajoritarian character [Dale Carpenter, the perfect person to comment on this, implies as much at Volokh and Orin Kerr speaks to the problem of the pace of change as it relates to the rational basis test].

Quite frankly, I have few qualms about permitting state recognition of gay marriages.  But it's difficult for me to make much of Judge Walker's ruling because I know that a judicial mandate, even if it protects individual rights, is a weak long-term foundation for significant societal change (as I drove into Sheboygan today, I caught one of the local Christian radio stations going full tilt against the ruling).  To paraphrase a wise professor, those who claim to be ending a morality-based policy are inevitably imposing a new morality whether they admit it or not.  And that's not a simple or insignificant thing.

Still, to the extent the state is going to be involved in recognizing relationships between two consenting adults, give us all the same basic legal rights when it comes to being in a committed relationship (a la equal protection) and be done with it.