A federal judge has declared California's famous Proposition 8, the latest of many state measures forbidding the marriage of same-sex couples, unconstitutional. The judge finds the law in violation of the Fourteenth Amendment as a discriminatory violation of its equal-protection clause. A few minutes ago on MSNBC, Rachel Maddow was crowing that the ruling proved that the right of same-sex couples to be married could never be subject to a popular vote. Just as predictably, Maggie Gallagher (whose column I haven't seen for a while), predicted that the Supreme Court would overrule the judge and vindicate Prop. 8.
Gallagher assumes that the judge's ruling is absurd if you cannot imagine the Founders or the authors of the Fourteenth Amendment consciously intended their handiwork to confer a right to same-sex marriage. Her conception of marriage makes such a notion impossible for her. She condemns rulings in which courts forbid voters from banning gay marriage as part of "a government takeover of an institution the government did not make, cannot in justice redefine, and ought to respect and protect as essential to the common good." Of course, if government doesn't make marriage, then even homophobic voters have no right to define it, even if their definition conforms with Gallagher's traditionalist notions. But as a matter of fact, every government remakes marriage whenever and wherever a government comes into being. A marriage rite has no legal force, and the participants in it are not bound together in any manner the state need recognize, unless there is a legal force that confirms the result of the rite. But since the state (or at least the United States) is not the creature of the religious authorities who might perform marriage rites, it has the right to set its own terms for confirming the legality of any marriage. It is under no obligation to defer to any religious authority or arbiter of tradition who seeks to forbid the state from regarding any two people as married should they be of the same gender.
As for whether the Constitution or its amendments creates a right to gay marriage, the real point would seem to be that, so long as the nation acknowledges the right of two people to be married, then the states or the federal government have no more right to deny marriage to homosexuals than it would to deny marriage to people of different races. The appeal to equal protection doesn't require us to imagine the framers of the Fourteenth condoning gay marriage. It means only that as long as two consenting adults can marry, than two consenting men or two consenting women can marry. I'm not a judge, but this looks like common sense.
Maggie Gallagher is one of those righteous persons who think that their rights, rather than those of homosexuals, are at stake in these debates. While the judge in today's ruling condemned Prop 8 for relegating homosexuals to a state of inferiority, Gallagher believes that her conscience and religious faith require her to regard homosexuality as an inferior (that is, sinful or deviant) state. To forbid people from acting in their capacity as law-making citizens on their faith in homosexual inferiority, in Gallagher's view, is a violation of their religious freedom. Worse, it's part of an "almost Soviet-style" government effort to "re-educate" children into "disrespect[ing] their parents' views and values."
For Gallagher, to be homophobic is no more bigoted than to be opposed to any other sin. She is insulted by the judge's equation of "support for marriage" (her euphemism for the denial of marriage to homosexuals) with "irrational bigotry, akin to racial animus." My advice to her is that, if she can't get over it, she had better get used to it. Homophobia is the 21st century equivalent to racism and anti-Semitism. Homophobes are our equivalent to Klansmen, and are literally and historically equivalent to Nazis. To oppose same-sex marriage is homophobic, and homophobia is bigotry.