I’m feeling terribly conflicted this morning. The Baseball Crank has a lengthy post on the same-sex marriage issue, in which he makes—and highlights—the following prediction:

Gay marriage will become the law of the land without any state legislature ever having voted it into law, without a majority of either house of Congress ever having voted in favor of gay marriage, without any statewide popular referendum ever having voted in favor of gay marriage, and without any state or federal constitutional provision ever having explicitly authorized it.

I think the first part of the Crank’s premise is incorrect—Massachusetts’ legislature will probably vote it into law later this year, albeit under court duress—but otherwise, there’s not a word there I’d disagree with. And efforts to analogize this “struggle for equality” with those of racial minorities don’t track—those groups were deliberately and systematically excluded from political participation through ordinary legislative channels, against the plain text of the 14th and 15th amendments to the Constitution and numerous federal statutes, and thus their recourse to the judiciary was justified. Tyranny and oppression is being confronted with policemen on horseback, unjustly imprisoned, blasted with fire hoses, and lynching; being deprived of legal recognition of the fact you’ve set up housekeeping with someone of the same gender doesn’t quite fit into that category.

Is the only justification needed for anyone to get a victory in the courts something along the lines of “we couldn’t get the legislature to vote for it“? I find this a profoundly disturbing question. And I say that as one of the tiny minority of people in my state who would support legal recognition of same-sex marriages. What am I supposed to tell my students? “Well, the Supreme Court doesn’t trust your representatives to do what’s right, so they’ve decided to decide on everyone else’s behalf what your laws should be.” I don’t remember seeing that in Federalist 10.

On the other hand, I think Kate Malcolm is probably right that the judgment of history may well see those who oppose same-sex marriage today in much the same light as we (well, most of we at any rate) today see the segregationists of the 1950s and 1960s. So in the end I end up just feeling conflicted about the whole thing.