Thanks! And nice write-up on the Constitution. I just wish some Republicans (I've almost given up on them and the Dems have been a lost cuase for years) would make the nomination to repalce Scalia into a discussion of the need to actually take the Constitution seriously again and return to its intent.

There is a reason why it was important for Obama to NOT go to the funeral of Supreme Court Justice Antonin Scalia. 

1. We know that progressives cannot attain the power they want, and transform the nation the way they want if they can't find a way past the constitution.  They try to ignore it, they misconstrue it, and they attempt to push for the "living document" theory of constitutional interpretation which is just a made-up rationale to justify violating what is actually written. 

2. Now, imagine that you took a young person who knew very little about political theory or the constitution and you talked to him about "Textualism" and "Originalism" as theories.  This would make complete sense and even seem obvious.  "Yes," he might think, "the constitution is a document and it has no pictures or graphics.  It is text, and we can't tell for sure what people intended if it isn't in the words they left behind.  And even though it was written a long time ago, and times have changed, there were still things that the people who wrote it meant.  And then it was ratified by all those states and they had to go on what that text meant to them - that's the meaning they ratified.  So, what it originally meant is how any conflicts or confusions should be resolved."

3. The shabby attempt of Progressives to deny Originalism takes the form of creating a thin rational, a shoddy facade behind which rank partisanship can operate while pretending to be something other than partisan.  This is about people who willingly engage in dishonesty to get what they want.  On the religious right, they claim that the founders were religious men and that the constitution is meant to support this or that position even though it really comes from scripture.  On the progressive side, they created the "living document" theory which says they should interpret the constitution in terms that will suit their progressive goals.

4. Obama is deeply invested in the concept of the "living document" and progressive goals.  He must treat the living document theory as not only the equal of Originalism, but as superior.  It is a nonsense theory, so it requires more, not less, ritual and pomp and lip-service to give an impression of substance.  It has to be raised up as not just a theory of equal importance, but as a theory that is superior to Originalism.  That is the reason that Obama can't go to the funeral of the leader of the Originalism understanding of the constitution. 

Remember, the court is supposed to be non-partisan.  It is just about keeping things constitutional. 

To kill 'constitutionality' means treating Originalism as half of a partisan argument and being against those who are Originalists.  Apart from golf, I don't think Obama ever does anything that isn't campaigning.  And, the progressives will go into high gear on getting a liberal justice on the bench and we will see them running around like their hair was on fire, like the sky was falling, like the end-times was but months away - they will accuse all opposition of being racist and sexist... it is like the holy grail is now within their reach.

David,

I think that the argument which makes 'marriage' about the definition of the word, and not about the law's effect is clever, but misleading.  When Mormons engaged in polygamy they called it marriage.  It has always been about a kind of relationship more than about who the parties are.  We have "going out with each other," "seeing someone," "going steady." "living together," "being a couple," etc. - all are descriptions of a kind of relationship.  The wider subject is romantic relationships, the descriptors have a connotation of a level of psychological commitment, they separate one kind of romantic relationship from another.  But, I think that the whole 'definition of marriage' argument is a rabbit hole.  The real issue is about a 'license.'

When a government issues a license we tend to think of it as granting permission.  But that is also a kind of misdirection.  What actually happens is that government sets conditions which prohibt anyone, except those who meet whatever conditions they establish, from engaging in the licensed actions.  A county in Lousianna might pass a law which states that no one can rent out a room in their house without becoming a licensed 'Hotelier' or something like that.  There are jurisdictions where no one can accept money for braiding hair without becoming a licensed beautician.  With marriage, no one can get married without meeting whatever conditions have been established by the jurisdiction.  Some governments made themselves the 'definers' of the word marriage.  They might say you have to pay a fee, get a blood test, be of a certain age, live in the jurisdiction, be of the same race, swear an oath, be an opposite sex couple, etc.  Every single condition is a restriction enforced by law.

Licensing is always a form of prohibiting by threat of physical force. 

And it isn't the government who should be enforcing anyone's idea of what the proper definition of the word 'marriage' is.  As a Devil's advocate, one might say, "Even if marriage is properly, logically, and once and for all, defined as ONLY between one man and one woman, it still would not be the place of the government to stop people from going through some kind of ceremony of their choosing, and then mistakenly calling themselves married if they aren't an opposite sex couple."  But that isn't what I believe regarding the definition.  I believe that when properly defined marriage might include more than two people and the people could be opposite or same sex and that the relationship is romantic in nature, and that the marriage is a personal commitment that may be shared with friends and family. 

Marriage does has civil law ramifications: inheritance, childcare responsibilites, divorce, property distribution, power of attorney, etc.  But all of those can be handled with simple contracts.  Who hops over a broom with whomever is not for the government to decide.

Here are the possible ways the Supreme Court could have gone:

1. Marriage is only between a man and a woman and no state or local jurisdiction shall act otherwise.

This is what the hard-core religious right would desire - imposing a religious view on all.  But many, who are not religious at all, are uncomfortable with the cultural changes we see where old institutions and traditions, which bind our culture together, are being turned upside down and if that feels personal, they too might take this position.

2. This is an issue that must be decided on a state by state basis.

This position is less adamant, not as strong, and represents the conservative's drive to observe states' right.

3. Gay and lesbian couples have the same rights as opposite sex couples and all states must issue them marriage licenses.

This is the progressives drive to use Cultural Marxism and Identity Politics to pursue their goal of transforming the nation.  It is also the position of those who don't want to see gay and lesbian couples denied equal rights, and buy into the idea that it is okay for government to be in charge of who should get married.

4. Getting married, whoever that might or might not include, is not something a government has a moral or legal right to interfer with.

This is the position that Objectivists should hold - where government's purpose is derived solely from the protection of indiviual rights.