Von at Obsidian Wings gets to the heart of the gay marriage legalization matter. Not everyone who prefers the legislative route to the court route is a hide-bound Constitutional fetishist.
Process matters for pragmatic reasons as well. The pragmatic reason to oppose gay marriage via the Courts is because Court decisions aren’t lasting without public support. See California, for instance. See, in the case of racial discrimination, Brown v. The Board of Education. Brown was an exactly-correct decision that belatedly corrected the stain of Plessy. The correction, however, took decades. And recall that Brown didn’t mean a whole lot until folks made it mean something in the 1960s. Segregation remained the rule until a lot of people bled, cried, and died to convince a majority of the country that it had to end by any means necessary.
“The arc of the moral universe is long, but it bends towards justice,” said Martin Luther King, Jr. And bending it is.
I still think von makes a mistake when he says that “The Fourteenth Amendment was foremost intended to end discrimination by slaveholders against former slaves.”
True, but that’s not the whole story. They intended to end that discrimination because of a principle which they believed in. That’s why they didn’t just say “Black people shall have the same rights as White people” or in language like that. Instead, they said “No state shall… deny to any person within its jurisdiction the equal protection of the laws.”
Von says he “doesn’t see” a gay marriage right in the Fourteenth Amendment, but I think that you either see a gay marriage right or you don’t see a marriage right at all. If you’re allowing 99% of people to do X, but not the remaining 1%, the burdens on the state to show that there’s an important reason why that 1% can’t do X. Iowa’s Supreme Court found that there’s no such reason.
If you argue that there is such a reason, you have access to data that’s been kept from the courts up until now. If you argue that legislators can discriminate a small, unpopular group without giving good reason, your beef is with the Constitution, not just me.