Stuart Taylor (Nonresident Senior Fellow in Governance Studies at the Brookings Institution and Contributer to National Journal) has what is perhaps the best perspective I’ve read on the implications of the California Supreme Court decision legalizing gay marriage. It should be noted that Stuart Taylor is a supporter of legalizing gay marriage.

The first half of the Taylor piece is an excellent argument for judicial restraint, giving compelling evidence that the California Supreme Court overreached its powers in its “gay marriage” decision. The second half is well-informed prognastication on how the outcome of the presidential election will effect the make-up of the Supreme Court.

Taylor concludes that a Democrat majority in the Senate will prohibit McCain from getting any truly conservative nominees to the Court confirmed. Conservatives wonder whether McCain would be inclined to nominate true conservatives irregardless of the Democrats. Obama, on the other hand, would be an outright disaster for a strict constructionist view of the Constitution, nominating justices who rule “from the heart” rather than from the text of the Constitution:

…justices who fit Obama’s description might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more.

The California Supreme Court decision on “gay marriage” stands as a model for the kind of judicial fiat we can expect if this country elects Barack Obama president. Stuart Taylor breaks down why that decision is a disaster in these relevant graphs:

I wholeheartedly support gay marriage. And I am happy for the many gays who rejoiced at the California Supreme Court’s 4-3 decision on May 15 ordering the state to stop calling committed gay couples “domestic partners” and start calling them “married.”

So why do I see the decision as an unfortunate exercise in judicial imperialism? Let me count the ways. Then I’ll touch on how it could be a harbinger of the constitutional innovating that we might see if the next president engineers a strong liberal majority–a likelier prospect than a strong conservative majority–on the U.S. Supreme Court.

. . . . . . . .

The steady accretion of both state and federal judicial power since the 1950s has left a malleable mass of hundreds of precedents straying ever-further from the original understanding of the constitutions and laws they purport to be “interpreting.” This made it easy for the California court to take the leap–as the Massachusetts Supreme Judicial Court had done in 2004–to overriding the state’s voters on gay marriage in the guise of enforcing “the ultimate expression of the people’s will.”

. . . . . . . .

The California court’s majority descended into especially slick sophistry when it suggested that the many gay-rights reforms that the state’s elected branches had already adopted were not a reason to let the democratic process work but rather a mandate for judicial imposition of gay marriage. The message to voters in other states may be: If you give the judges an inch on gay rights, they will take a mile.

. . . . . . . .

This is not to deny the importance to many gay couples and their children of being officially recognized as “married.” They should be treated as married. But to decree this by judicial fiat has large costs to democratic governance. Judicial power to override the deeply felt values of popular majorities should be used sparingly, to enforce clear constitutional commands or redress great injustices, not deployed whenever the judges think they can improve on the work of the elected branches or accelerate progressive reforms already under way.

Also troubling is the majority’s eagerness to move beyond enforcing substantive rights into dictating what words the government must and must not use: Same-sex couples, the majority ruled, have a “fundamental right … to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships.”

This urge to regulate government speech resonates with the logic of those federal judges who have sought to strip “under God” out of the Pledge of Allegiance. Can court-ordered erasure of “In God We Trust” from U.S. currency, and perhaps a judicial rewrite of the National Anthem, be far behind?

HT: Rod Dreher: Crunchy Con