August is off to an interesting start, with liberal elites telling large majorities of Americans that they are bigots if they oppose a mosque at Ground Zero or same sex marriage in California. These edicts to the cultural serfs from their betters in New York and San Francisco only add to the growing sense that November 2010 really is a show-down election, a conviction that was strengthened by the amazing verdict on Obamacare from the Show Me State on Tuesday.
The debates over the Ground Zero mosque and same-sex marriage are both being carried on at two levels.
In both cases there is a complicated legal debate underway, as there is in the case of Arizona's SB1070 and Virginia's challenge to Obamacare. Each of these four disputes could make for wonderful hypotheticals on a final exam in any Con Law class in the country, so not surprisingly the non-lawyers in pundit land are making a hash of it. (For an example of careful analysis of the marriage decision, see Orin Kerr's take on one small portion of Judge Walker's opinion at The Volokh Conspiracy, which demonstrates the complexity of the arguments and why almost all non-lawyers and most lawyers are going to have as tough a time with the legal issues here as they have with the preemption and Commerce Clause issues in the Arizona and Virginia cases and the Free Exercise arguments regarding GZM.)
Here's the all-purpose, all-weather analysis for all four controversies: Eventually Anthony Kennedy will tell us what the law is. Until then, it is all just so much dorm-room chatter. The Supreme Court is narrowly divided between "living Constitution" justices and "originalist" justices, and the four in each camp will be pretty predictable on the marriage, preemption, and Commerce Clause issues, though less so on the Free Exercise issue which would be at the heart of the case should the GZM ever reach the Court (which the Court almost certainly does not want it to do.)
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