This week Judge Walker found for gay marriage in his decision against California's Proposition 8. His decision in Perry v. Schwarzenegger centers on numerous findings of fact in favor of gay marriage.
Conservatives are united in regarding these findings of fact as irretrievably biased in favor of the plaintiffs.
James Taranto thinks that appellate judges will find it hard to argue against findings of fact, however risible. And then the case comes to a Supreme Court split 4-4 with Justice Kennedy in the middle. Taranto predicts that Kennedy will vote in favor of gay marriage.
If that occurs, I realized yesterday, Perry v. Schwarzenegger will probably turn out to be Roe v. Wade II. Only this time the Supreme Court will know what it is doing.
Back in 1973 the US Supreme Court, in finding a right to privacy and a right to abortion in the US Constitution, did not expect to stir up a hornet's nest. It assumed, along with all right-minded people, that legal, accessible, value-free abortion was a sensible and practical individual right. The Court did not understand that, for millions of ordinary Americans, babies are sacred.
There's a reason for the disconnect between ordinary Americans and elite Americans on the social issues. For elite Americans the hope of immortality rests in the hope of becoming a footnote to history with a great creative achievement: a law, a work of art, a scientific discovery. But for ordinary Americans the only hope of immortality outside religious faith is their children. For such people, children and babies and marriage become a transcendent issue.
Gay marriage is the abortion issue all over again. In elite America, gay marriage is no big deal. It's a lifestyle choice. But for ordinary Americans it threatens the hope for immortality in children.
Gay marriage advocates are clear that the basis of gay marriage is the universal right to marry the one you love. For ordinary Americans marriage is rather different. It is the framework within which you can lay down your hope for immortality, your children.
Conservative partisans should wish that the tough guy defendant in Perry v. Schwarzenegger were not Conan the Barbarian but Dirty Harry. For if Justice Kennedy doubles down on Roe v. Wade we might as well call the gay marriage case Perry v. Eastwood.
Politically, a pro gay marriage decision will likely create a new movement of rejection against liberalism as persistent and as fervent as the pro-choice movement. It might be enough to create a conservative political majority in the United States for the next generation. So conservatives might well say, with Dirty Harry, Go ahead, make my day.
But that would be a shame. For the sake of social peace it would be better for the Supreme Court to fudge the issue, as it did in the famous Bakke decision on racial preferences.
On the other hand, we must recognize that the social issues cannot be kicked down the road forever. The US tried that with slavery. In retrospect, it would have been better to tackle slavery sooner rather than later.
You'll remember that it was the South's intransigence that prevented a peaceful solution, or even a fudge, on slavery. Kinda reminds me of the intransigence of today's liberal judges and their liberal activist cheerleaders.