Quote of the Day: The court, by the way, is not being activist.

Mickey Kaus takes issue with the claim by Andrew Sullivan,

The [New Jersey supreme] court, by the way, is not being activist. It had no logical option but to apply its equal protection clause to everybody.

Kaus points out,

... a) The creation of a new protected class is pretty close to the paradigm of judicial activism; b) The final step taken by the New Jersey court may have seemed the "only logical option" only because of all the earlier activist steps the N.J. courts had taken to help bring the law to the point of giving some-but-not-full marriage rights to gays; c) ... the breathtaking speed with which this sort of radical cultural change has gone from being unmentioned to being a litmus test for all rational people is one of the things that worries ordinary voters and turns them into cultural conservatives ...

Kaus quotes Kevin Drum's observation,

Sullivan wrote Here Comes the Groom, an article for the New Republic that defended gay marriage, in 1989. The Hawaii Supreme Court ruled in 1993 that the state needed to show a "compelling state interest" in order to continue denying gay people the right to marry. Vermont passed a civil union law in 2000 ...

Kaus concludes,

Four years from a provocative Andrew Sullivan TNR cover story to the law of Hawaii? Yes, that's alarmingly fast. Especially for constitutional law, which can't be repealed by simply electing new leaders. Especially for a change in family structure. (How many years did it take monogamy to displace polygamy? You mean how many millenia.) ...