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Not surprisingly, I have convinced myself that Scalia was right.

The plain text of the 14th ammendment on this matter is terse in the extreme - stating simply:

No State shall ...deny to any person within its jurisdiction the equal protection of the laws.

Certainly states can still choose whether to have laws that affect the classes of child molestors, bank robbers or traitors. It is fitting and proper for state and local governments to choose, in various ways, what activities it will find acceptable in the culture and what it won't, and states may allow or prohibit such laws by the jurisdictions within their borders.

If local governments in California were passing laws granting special favors to illegal immigrants, or if those in Utah were granting special favors to polygamists, and if the state passed a constitutional ammendment striking down such laws, that is within the states power.

The 14th ammendment does not mean that all conceivable classes of citizens (or non-citizens ;) can have their own special immunity from any state laws singling out their characteristic actions, whether favorably or unfavorably.

We must be careful to avoid and resist extending the scope of the 14th amendment "equal protection" clause. It is a two edged sword. If it can be used to uphold state laws or amendments deemed unfavorable to gays, it can also be used to uphold laws deemed favorable to gays (and abortionists - as indeed has been the case).

That's the real issue here. Not whether a particular state law or amendment is deemed pro or anti gay, but whether the "equal protection" clause of the 14th amendment gives the Supreme Court jurisdiction to override such state issues.

I think Scalia was right - it does not.

And I trust and pray that Bush made a good choice in Roberts. I am optimistic that he did.

For more comments on the unnatural extension of the 14th amendment to extend the jurisdiction of the Supreme Court, see the fairly readable article UNNATURAL SELECTION