Thirty-seven years ago, 7 justices on the U.S. Supreme Court took the issue of abortion out of the hands of the American people and stuffed it in the penumbras and emanations of the constitution. It’s been a political football ever since.

Yesterday, a federal judge took the issue of gay marriage out of the hands of the American people and stuffed it in the “right to define one’s own concept of existence.”

A few points:

First, the judge's “facts” are nothing of the sort. His appeal to authority of the social scientists is little different than when the Supreme Court uses foreign law to determine what the constitution should mean – he’s just looking for people that agree with him.

Second, we all knew this was coming. The judge is a homosexual. This is not automatically a disqualifying fact to having someone preside over this trial. However, he did not conduct the trial in anything that could be called a fair manner.

Third, the political class has put us in a Catch-22 as Bob Maistros points out.

With Judge Walker's decision, it comes down to this for proponents of traditional marriage: go to the feds for constitutional protection of marriage, and they say regulating marriage is a state matter. Regulate marriage on the state level, and the feds will invalidate your actions as violating the U.S. Constitution.

Heads, they win. Tails, you lose. Catch-22.

Fourth, John Yoo, who personally supports same-sex marriage, notes that the standard Judge Vaughn Walker applies to the Prop. 8 decision (strict scrutiny) would never be used when determining the legality of any other law.

Imagine if the courts were to apply this approach to other laws. Did the stimulus and bailout bills in fact encourage economic growth? Do the illicit drug laws in fact increase health and reduce crime? Can we catch terrorists by monitoring their emails and phone calls without a warrant? One judge, armed with a few social science studies, could decide to overrule the considered judgment of the elected branches of government.

Finally, Justice Antonin Scalia was right. (From Lawrence v. Texas which found a “right” to homosexual sex in the constitution.)

Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution"? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Justice Kennedy, who authored the Lawrence decision, pooh-poohed Scalia’s claim that he had set the court down a slippery slope, yet here we are.

The case will ultimately make its way to the Supreme Court – that’s certain. There are undoubtedly four votes for same-sex marriage and four votes against. It will come down to Justice Kennedy again. Was the line he appeared to draw in Lawrence a hard one? Or was it drawn in shifting sands?

Time will tell. But one thing is certain: The Imperial Judiciary still hasn’t learned anything from Roe.