Steve Chapman has a sensible analysis of the current dispute in California. Can a high court of a state use "inalienable rights" as a way of declaring part of a state constitution unconstitutional, as the attorney general of that great state (Jerry Brown) claims? Chapman’s democratic view is that the war over marriage in California and throughout our country should be political, not judicial. Advocates of same-sex marriage want to short-circuit the democratic process, even though the trend of public opinion is clearly on their side. Chapman reports that the California court is not, for now, likely to accept the invitation to declare the constitution unconstitutional.
Anyone reflecting on what’s going on in California can’t help but think that our national high court might soon be tempted--based on what’s actually said in LAWRENCE v. TEXAS--to use "inalienable rights" (as embodied in the Constitution through the word "liberty" [which has become equivalent to autonomy] in the Fourteenth Amendment) to declare a right to same-sex marriage. And of course the Supreme Court can, it seems, declare parts of states constitutions unconstitutional with that amendment in mind. The possibility of that new birth of freedom, of course, excites libertarian judicial scholars such as Randy Barnett--who of course rightly discerned the radical implications of the Court’s opinion on LAWRENCE. Surely that’s not the "natural rights jurisprudence" that we believe in(?), if we do believe in it (which, for Scalia reasons, I tend not to in most cases).
This is an issue that America needs to be discussing now.