Yesterday's decision by the California Supreme Court mandating same-sex marriage is probably unlikely to survive past November.
I haven't yet read the decision so I'll reserve commentary on it. As long time readers of this blog know, I oppose same-sex marriage on grounds that have nothing to do with moral judgments about homosexuality. Marriage is an institution with mores and legal characteristics that are rooted in the potentially procreative nature of heterosexual relationships and the resulting need to channel the rather different ways that men and women experience sexuality in a way that facilitates the raising of children. Love and intimacy are part of that, but not the whole of it.
It seems inconceivable to me, then, that you can take an institution that has evolved in a certain setting for a specific purpose and extend it to another setting involving a different set of relationships that, while similar in some ways, are not and cannot be the same without causing changes to that institution.
Part of my opposition is rooted in my Burkean nature. Part is informed by the fact that marriage can be adversely affected by things that are, in many ways, admirable (see. e.g., greater appreciation for individual autonomy and sexual liberation) and that these changes can have devastating social consequences (see, e.g., the stunning absence of fathers among the urban poor in the United States).
For that reason, I distrust rapid changes in marriage brought about by the application of abstractions about equality and individual autonomy. These principles may frame (parts of ) the discussion but they don't resolve it.
So the California Supreme Court has found that the state's constitution mandates a change in an essential and longstanding institution that virtually no one in any place or at any time would have dreamed of until, figuratively speaking, somewhere around last Tuesday.
This is why, contra Dahlia Lithwick in this hash of a column, I can call the court's decision activist. By this I mean that it cannot possibly be rooted in a source of authority other than the majority's policy preferences. You cannot reasonably conclude that the people of California intended their equal protection and due process clauses to require a result that, until a few years ago, virtually everyone, rightly or wrongly, would have thought preposterous. An interpretive method that allows you to reach such a result seems unlikely to have much in the way of restraint on judicial discretion.
I am sure, as Lithwick (who seems unable to grasp the concept of separation of powers) says, that there is plenty of "law stuff" in the decision. I'm sure there is. But, as Ed Whelan notes, "[i]t’s rather charming, I suppose, that after all the lawless rulings on same-sex marriage, one might be so naïve as to think that maybe, just maybe, there’s a right to same-sex marriage hidden somewhere in the penumbras and emanations of the California constitution ...."
I suppose that someone might - some day - prove that alchemy can turn coal into gold, but the presumption runs the other way.