Here's Garrett Epps, in The American Prospect, describing the broader legal implications in the Ninth Circuit Court's decision to uphold the invalidation of Proposition 8:
“It’s always been this way” is the essence of Edmund Burke-style conservatism. Reason, Burke argued, is fallible; we shouldn’t change traditional ways on such an uncertain basis. A wise society restricts even our best impulses: “the restraints on men, as well as their liberties, are to be reckoned among their rights,” Burke wrote in Reflections on the Revolution in France.
American law doesn’t recognize “better to let everything alone” as “legitimate,” much less “compelling.” The right to marry is a constitutional right, long recognized in history and caselaw. The government can’t deny constitutional rights on the grounds that “we just always did it that way.” Government has to give a reason. In historical terms, that’s a remarkable thing. It reminds us that, underneath its social inertia and conservative exterior, America and its Constitution are the products of a revolution.
Put in a shorter form (which is the quote of the day):
My Con Law prof, Walter Dellinger, once said the course could be summed up in two sentences: “When government wants to do something to you, it has to give a reason. When it wants to do something really bad, it has to give a good reason.”
