Nothing's changed

Watching the cable news shows in the wake of Judge Walker's overturning of Proposition 8 in California, the thing that occurs to me is the right talking about this activist judge establishing a new right to same sex marriage. Judge Walker did no such thing. Much like the California Supreme Court and the Massachusetts Supreme Court before it, all judge Walker did was determine that denying the right to marriage to people of the same sex was unconstitutional. This does not "establish" a new right.

Ted Olson was on Fox being grilled by Chris Wallace about this being an activist decision. Ted Olson was the attorney who argued for then-Governor Bush in Bush V Gore that led to the Bush 43 presidency. He served as Solicitor General under President Bush. His partisan bona fides are firmly established. Wallace constantly tried to get him to admit the decision was activism.

Mr. Olson agreed that there is no new civil right to same sex marriage. However, the court has continually ruled that marriage is a fundamental right. Some would deny people that right based on the gender of the people seeking to avail themselves of the fundamental right to marry. If marriage is a fundamental right, as the Supreme Court has consistently ruled it is over more than 100 years, than every citizen is entitled to that right. Judge Walker did not establish a new right, he merely affirmed that one applied to all people.