In today’s LA Times Brian Gray, a law Professor in San Francisco, argues that the Supreme Court should overturn California’s ban on gay marriage. Gray argues that the prohibition unconstitutionally singles out a class of people and denies them a right.
But where does this right come from? Clearly, this right is not an ancient right, as marriage in just about every place in history, including throughout the US until very recently, required that marriages include at least one man and one women, and, quite often, only one man and one woman. That being the case, the argument for constitutionally mandating gay marriage must rest on the idea that the Constitution is a living document which ought to follow the evolving understanding idea of rights in our society. In recent years, prohibitions on gay marriage have passed repeatedly, often by large margins. Hence it is rather hard to argue that there is a new social consensus in favor of gay marriage. And such new consensus is the only thing that can justify the discovery of such rights. Or do the supporters of the living constitution think that the law ought to reflect the beliefs of law Professors?