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I agree with you on the bulk of your policy points, but are you arguing that SCOTUS should decree that gays have a constitutional right to state sanctioned "marriage" or "civil unions," with benefits wholly equal to those affored heterosexual couples in a marriage? What we think is good policy in our own minds is not always co-extensive with a Constitutional right. Indeed, I would argue that it typically is not. I assume you would agree.

You have also IMO not really grappled with the argument on which John and I do agree, that "resolving" these matters by judicial fiat lends to the coarsening of the public square, irreconciable bitterness by the losing side, and such downside legacies as making judicial confirmations a partisan food fight, where in time only purported stealth moderates will be confirmable to choke point judicial positions, i.e. nominees whom folks really don't have much of a clue how they will turn out (you know, folks like Stevens, Seuter, O'Connor, Kennedy, Breyer and the like). That strikes me as a risky scheme, furthering undermining the underlying precept that is "fundamental" and "essential to the pursuit of liberty in all its spatial dimensions," that laws should have at least some nexus, however attentuated, with the consent of the governed.

I think it would be helpful to keep the two aspects of this debate (policy versus process) clearly distinct in our minds. John and I do that with each other, which is why we get along so well on this matter, as well as some others (such as the Judge Moore affair), where we are on wholly opposite sides of some aspects of a divisive issue.

Regards, as always. I am just trying to assist in constructive debate.

"I agree with you on the bulk of your policy points, but are you arguing that SCOTUS should decree that gays have a constitutional right to state sanctioned "marriage" or "civil unions," with benefits wholly equal to those affored heterosexual couples in a marriage?"

There is no such thing as a "gay" or "homosexual" citizen in the eyes of the Court, and the same people who argue against the idea of hate crime should not then turn around and argue denial of "rights" based on sexual orientation, by doing that, they give weight to the argument favoring the need for such hate crime legislation.

My argument is that neither States, or the Federal government have the Constitutional power to restrict two able-bodied, consenting adult citizens, from entering into the civil contract known as marriage, performed by government licensed magistrates, because in order to justify the refusal to license the union, either the State, or the Feds must fall back on a reason wholly based on religious beliefs as every other "societal" argument fails miserably to hold up to the light of day.

"You have also IMO not really grappled with the argument on which John and I do agree, that "resolving" these matters by judicial fiat lends to the coarsening of the public square, irreconciable bitterness by the losing side, and such downside legacies as making judicial confirmations a partisan food fight."

We don't mind fiat when the decision favors us.

I don't have a problem with the Court's findings, I believe that there is a need to provide citizens with a legal forum to fight what they view as inequities in the law as they apply to us as individuals. Expecting politicians to enact or overturn laws that are detrimental to a minority of the voters, at the expense of earning the wrath of large voting blocks is simply silly, sometimes fiat is all that's left.

I bet that there would not be a soul in FR arguing against SCOTUS making abortion illegal in the US by fiat.