I'm aware that blue state folks often declare their pet issues to be secret constitutional rights hidden in the auras and penumbra's. I hope Trump appoints enough judges to do the same - I enjoy watching the intellectually dishonest people around me squirm.
That doesn't make them any less a part of the culture war.
> blue state folks often declare their pet issues to be secret constitutional rights hidden in the auras and penumbra's
My legal philosophy skews hard right, so I'm no big fan of penumbras. But LGBT rights are a straightforward, textual application of the 14th amendment:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
It's there as clear as day: you don't get to single out particular people for special treatment under the law. The legal weaseling needed to avoid the plain text ("well the government is not denying anyone the right to marry someone of the opposite gender, even if they are gay") is right up there with reading the Second Amendment only to apply to militias.
It's also where textualists and originalists have to part ways. The framers of the 14th amendment almost certainly didn't intend to preclude state laws that single out gays, women, etc. But that's irrelevant--they used unquestionably broad language and the text on the page is the only thing that matters. Particularly here, where there is no argument that the words would have meant something different to the framers (which is different from saying that the reading is different than what the framers intended).
Laws single out particular people based on preferences all the time, if you define "we won't subsidize/will penalize your choices" as "single out".
Some people prefer to marry men, they can't get singled out. Some prefer to rent a home rather than buy, they do get singled out. Others prefer no health insurance, they also get singled out. Or as it relates to gay marriage, people who prefer to be single get singled out.
The text pretty clearly says you can't pass a law "no voting if you have gay preferences". That's very different from requiring legal privileges for gay relationships.
If >95% of people felt so strongly about renting vs. buying that they wouldn't even try the other, and most people believed this to be innate, housing policy would probably be different.
This is exactly what the trump phenomenon is all about, and all the hmming and hawing about it is just vain searching for substance were there's none. All power, no judgement. Make 'em squirm and fuck the consequences.
"Since power over human beings is shown in making them do what they would rather not do, the man who is actuated by love of power is more apt to inflict pain than to permit pleasure. If you ask your boss for leave of absence from the office on some legitimate occasion, his love of power will derive more satisfaction from a refusal than from a consent. If you require a building permit, the petty official concerned will obviously get more pleasure from saying «No» than from saying «Yes». It is this sort of thing which makes the love of power such a dangerous motive."
Do you think that some Trump voters might have taken the Alinksyist "will to power" idea to heart after being screamed at by radical leftists for 40 years?
That doesn't make them any less a part of the culture war.