> At bottom, this isn't a right flowing from the dictates of the Constitution. Nobody in 1789 would have said that gay marriage is a fundamental right. We acknowledge the right today for the same reason we acknowledge many other rights we did not acknowledge then--society as a whole has agreed to recognize the right
Looking at just the legal aspects, in 1789 (and 1776) we did recognize that 'all men are created equal' and equal protection (and due process might apply too). From those rights flows the idea that a right conferred to some, such as marraige, should not be denied to others.
> It is important that the Court not act ahead of society.
I wonder how much of this is due to the Court being unable to act far ahead of society. The Court has no real power of enforcement; for example, when the Supreme Court ruled for Indians whose land was siezed in Georgia, President Andrew Jackson (now on your $20 bill) famously said "[Chief Justice] John Marshall has made his decision, now let him enforce it."
If they rule and are ignored, they lose credibility and influence and gain nothing. I wonder how often judges take than into consideration (especially judges in lower courts, such as municipal courts).
> Looking at just the legal aspects, in 1789 (and 1776) we did recognize that 'all men are created equal' and equal protection (and due process might apply too). From those rights flows the idea that a right conferred to some, such as marraige, should not be denied to others.
That language is in the declaration of independence, which has no legal effect. The Constitution explicitly creates a system where all men are not created equal.
> At bottom, this isn't a right flowing from the dictates of the Constitution. Nobody in 1789 would have said that gay marriage is a fundamental right. We acknowledge the right today for the same reason we acknowledge many other rights we did not acknowledge then--society as a whole has agreed to recognize the right
Looking at just the legal aspects, in 1789 (and 1776) we did recognize that 'all men are created equal' and equal protection (and due process might apply too). From those rights flows the idea that a right conferred to some, such as marraige, should not be denied to others.
> It is important that the Court not act ahead of society.
I wonder how much of this is due to the Court being unable to act far ahead of society. The Court has no real power of enforcement; for example, when the Supreme Court ruled for Indians whose land was siezed in Georgia, President Andrew Jackson (now on your $20 bill) famously said "[Chief Justice] John Marshall has made his decision, now let him enforce it."
If they rule and are ignored, they lose credibility and influence and gain nothing. I wonder how often judges take than into consideration (especially judges in lower courts, such as municipal courts).