The decision (read it here) of a federal judge in California to reverse the ban on same-sex marriage enacted by California voters has roughly zero chance of standing up on appeal.

That's my prediction anyway. The judge's analysis of the 14th Amendment is fundamentally flawed. He starts out with the proposion that "The freedom to marry is recognized as a fundamental right protected by the Due Process Clause."

So far, so good. But the decision on which he relies to support that conclusion, Loving v. Virginia, held that states could not use race as a factor in prohibiting marriage between two individuals.

The 14th Amendment specifically prohibits racial discrimination, so that makes perfect sense. But he then goes on to argue that the Constitution also bans discriminating on the basis of sexual orientation. It quite plainly does no such thing. Various state constitutions do so, and if this case had come up in the courts of such a state, his reasoning might make sense - except for the fact that in California the referendum in question actually becomes the constitutional language, and cannot therefore be reversed on state constitutional grounds.

On federal constitutional grounds, this one's not even close. By Judge Vaughn R. Walker's reasoning, one could just as well argue there is a constitutional right for a bisexual to have both a male and female spouse. And so on down through a whole list of arguments we need not go into here. And that is why Walker will have his decision reversed when it gets to the level at which judges pay attention to the actual wording of the Constitution. I am hereby willing to bet a six-pack on that, even though I have yet to read the opinions posted on

my favorite legal blog.

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The

on behalf of the LBGT (Lesbian, Gay, Bisexual and Transgender) community. Can anyone supply a reason the theoretical right to marriage endorsed by this judge should not be extended to a bisexual who wishes to have both a male and female spouse? And if bisexual marriage is a constitutional right, why isn't polygamy in general also guaranteed by the U.S Constitution? I welcome any reasoned arguments on that point.

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Now that the Volokh crowd has been weighing in, let me cite

by Jonathon Adler that I feel is particularly appropriate in summing up the judge's reasoning:

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: And as one commenter points out down th eline the responses to Adler, any Supreme Court decision affirming this judgment would necessarily legalize gay marriage in every state in the union. And that, boys and girls, just ain't gonna happen.