Today, the 9th Circuit upheld the absurd ruling of Judge Vaughn Walker of the U.S. District Court of the Northern District of California, striking down Proposition 8, the voter-approved constitutional amendment that would uphold traditional marriage in the state. The ruling itself was highly political and in no way legally oriented. “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians,” wrote the Court, “and to officially reclassify their relationships and families as inferior… the Constitution simply does not allow for ‘laws of this sort.’”

This, of course, is blatantly false. To begin, the Constitution says nothing about marriage whatsoever, which means that its definition is left to the states to decide. Second, there are plenty of great reasons to uphold traditional marriage and to disapprove alternative forms of marriage, ranging from thousands of years of history to state interest in childbirth to state interest in child rearing. Thirdly, the notion that the “equal protection” clause of the 14th Amendment to the Constitution applies to homosexual behavior rather than innate distinctions like race is absurd. Marriage laws approve and disapprove behavior, not status. While gay rights advocates like to equate race and sexuality, the two are vastly different – you can’t shake your race, but your behavior can always change, no matter how unpleasant that change may be. Behavior is routinely regulated by the states and invariably affects people differently based on whether or not they engage in said behavior.

Leave aside the absolutely correct charges that this ruling is a legal abomination, and the fact that our judiciary wields far too much clout overall. Let’s focus instead, for a moment, on the impact this ruling will have on the presidential race.

President Obama has been able to elude the question of same-sex marriage overall. His slippery rhetoric indicates that he’s pro-civil unions but anti-same sex marriage but is “evolving.” This ruling will force him to take a side. He will likely attempt to suggest that this is a decision best left to the courts, but he’s never taken that position before – see, for example, campaign finance reform. It’s unlikely that the gay community or the religious community will allow him to get away with that. (more…)

What does the Constitution really say about the most controversial policy decisions of the present day?  What arguments against Obamacare have potential in court, and which are DOA?

Constitutional law experts Richard Epstein and John Yoo joined us  to discuss these very issues.  They examine the constitutionality of Obacamare through the lens of the “encroachment” argument (which has potential) and the “general welfare” argument, which they argue won’t work.

We also discuss CA’s Prop 8 and Judge Walker’s ruling that it violates the equal protection and due process laws in the Constitution. Yoo argues that the “right to gay marriage” is a new and invented right, and that while he is okay with gay marriage as a policy matter, a judicially imposed rule that overturns the majority of voters isn’t the way to get it done.  Instead, Judge Walker essentially says that the majority of Californians are bigots .

Epstein and Yoo provide predictions for Supreme Court decisions, reflect on Bush v. Gore (ten years later!), and discuss the Supreme Court under John Roberts.

Here is the full episode:

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With the overturning of Prop 8 in California, we thought it would be appropriate to share this clip of a discussion we had last weekend with a couple of gay conservatives who were in attendance at the Uni-Tea Party in Philadelphia.

Note their constitution-centric take on marriage (gay or otherwise) as well as their experiences facing hateful bigotry from their peers on the ever Progressive Left.

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