Jacob Sullum

It was not much of a stretch to conclude that the 14th Amendment, which the U.S. Supreme Court had said protected "the right of the individual ... to marry," barred anti-miscegenation laws. By contrast, the California Supreme Court now is redefining that right to mean something it never has meant, treating two people of the same sex, as opposed to a man and a woman of different races, as "similarly situated" and therefore entitled to identical treatment in the name of equal protection.

As a matter of policy, I favor an arrangement similar to the one mandated by the court, in which the government treats couples equally without regard to sexual orientation. The California legislature already has done that in almost every respect, extending to gay "domestic partners" all the rights and responsibilities that apply to heterosexual couples under state law, while withholding the "marriage" label.

So why does it matter if a court pushes the state a bit further in this direction, requiring equal nomenclature as well as equal treatment? Because the state constitution leaves that decision to the legislative process, and a constitution that can be ignored to reach good results also can be ignored to reach bad results.

As McCain noted in his NRA speech, many gun control advocates claim the Second Amendment is "archaic," no longer relevant in modern America. Advocates of campaign finance regulation, including McCain himself, argue that the contemporary threat of big money in politics requires revising the First Amendment's command that "Congress shall make no law ... abridging the freedom of speech." For courts confronted by laws based on such constitutional revisionism, judicial restraint is no virtue.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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