Another email makes a different point:
“Often we lawyers speak of good faith in distinguishing those actions which are punished and those that are not. I think the difference between Judge Moore and Mayor Newsom is simply that concept.
Moore had no possible good faith argument for what he was doing. The Supreme Court had repeatedly ruled against displays like his. While the Court has not been a font of consistency in its Establishment Clause jurisprudence, it has consistently ruled against Judeo-Christian displays which have no secular nexus. Moor’s had none and thus could in no way be justified.
Given recent trends in litigation, I do think Mayor Newsom has a strong argument that a court could well find the California law violative of equal protection. After the Massachusetts Supreme Court interpreted its constitution as requiring no marriage distinctions between gay and straight, and with similar judgments by the highest courts in Hawaii and Vermont, I think there is no question that the Newsom could in good faith say that California’s courts will in all probability overrule the statute which makes marriage only for a man and a woman. Basing his action as mayor on that seems to me in keeping with any officeholder’s oath which first and foremost binds them to the Constitution rather than to other laws.”
What this debate may be coming down to is that, under almost any rational understanding of equal protection, civil marriage has to be extended to gay couples. That’s why court after court has ruled thus. But popular feeling among at least a plurality of voters holds that marriage for gays is abhorrent to them, a threat to marriage itself – or, in the words of Laura Bush, “very, very shocking.” Given equal protection guarantees, the only viable option, then, for those opposed to marriage rights for gays is to change the constitutions – state and federal – to carve out an exception to equality under the law. So that the U.S. and state constitutions would say: Every citizen is equal under the law, except when it comes to gays marrying. Or, more bluntly: all people are equal but some people are more equal than others. And this Orwellism we put into the founding document of the country. That may emerge as the choice we face.
COULTER FIGHTS BACK: I’m no fan of hers, but this column is relentless. I’m glad it’s not me she’s after.
The Dish 