Anybody who says there is a constitutional bar on gender discrimination isn’t a conservative

The Justices Are Not Ready To Bring Marriage Equality To Alabama, And They Want Prop 8 To Go Away

And no textualist, either.

Writes IM,

There are probably five justices who object to California’s anti-gay Proposition 8 and who would prefer to see it struck down.

Justice Kennedy, the conservative viewed as most likely to provide the fifth vote for equality, openly pondered whether Prop 8 violates the Constitution’s ban on gender discrimination.

Ah.

Well, Ms. Sotomayor thinks there is a constitutional guarantee that state laws disadvantaging any particular class of persons (“discrimination”) have to be "rational."

And who will be the judge of that, do you think?

And she thinks there are classes of people entitled to heightened protection under the constitution.

All of that, of course, is lib-speak referencing the structure of federal protection for various minorities (and women) built up over the years on a creative and tendentious reading of “equal protection of the laws” in the 14^th Amendment, coupled with a lot of tests and conditions and principles and rules that are sheer inventions of previous liberal judges and courts and are nowhere to be found in the constitution but in the paragraphs upon paragraphs of the 14th that are always printed in invisible ink.

She’s all set to officially decide gays are such a group.

As IM explains,

Under longstanding precedent, a group which has experienced a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” enjoys enhanced protection under the Constitution’s Equal Protection Clause.

See?

Lib speak for people they want to protect and/or whose activities they want to be sure are allowed, though they are so repugnant to so many that they have been criminalized.

Of course, it has to be agreed in the first place for this argument even to come up that laws discountenancing same-sex marriage are discriminatory.

And that is an argument particularly hard to make given that many states discountenancing it allow the practical near equivalent of civil unions, instead.

As everybody knows, such laws do not prevent gays from marrying.

And many, many are the gays who have married and are married, though often to the chagrin of their partners to whom they routinely "come out" only well after the knot has been tied.

These laws only prevent gays, and everyone else, from marrying someone of the same sex.

They do not prevent only gays from doing the thing they discountenance.

"Bosh," you say.

"The law is intended to and actually does prevent only gays from doing this, since only they want to."

To which the appropriate rejoinder is that the exact same thing is true of any law forbidding any thing.

Laws against burglary only trouble those who want to commit burglary.

Laws against rape . . .

Laws against pederasty . . .

Laws against statutory rape . . .

Of what law is it not true that it is aimed at stopping a target group from doing something they want to do and most, if not all, others don't want to do or don't very much want to do?

Go ask NAMBLA what they think about that.

And in any case none of that is relevant to anything the 14th Amendment guarantees under the rubric, "equal protection of the laws."

And, anyway, it is the federal congress the Amendment charges to ensure state compliance, not the Supreme Court.

Note that IM regards it as normal that judges today plan a crucial and important ruling for years or decades later, refusing to make the same ruling right away not because the law does not already justify it but on the excuse that "now is not the time."

What a pile of hocus-pocus.