I see those who are social conservatives first and true conservative "constructionists" second and vice-versa. Personally, I wish the latter prevailed on the Right these days. Our national discourse would benefit greatly.

Judges, though fallible, know the law and the constitution better than most if not all of the people on these threads...regardless of who appointed them. I would be curious to see who appointed this judge and intend to find out. It wouldn't surprise me if he (or she) is a Bush 1 or Reagan appointee. It's worth noting that the judges who did make headlines in the Schiavo case and the story of the murdered family were Republican appointees who held up the constitution as they saw it.

Talk of impeachment is nonesense as some true conservatives have pointed that out. Judges act outside of the pressure of public opinion. This is how it should be. When stories like this make headlines and go against what the reader wants, the reader needs to try to understand the basis of ruling before resorting to blind partisan bickering and talking points.

Chris: The Supreme Court is often, if not routinely, wrong. That vision of the 14th is so obviously out of whack with what its framers intended. Indeed, the great irony of the 14th is that it took nearly a century for the courts to uphold its plain meaning and intent (i.e., black people are to be treated as equals under the law) but only a quarter century for the courts to invent all sorts of things for the 14th to accomplish clearly outside its scope.

Presumably if there were an unenumerated right to "intimate association" guaranteed by the 9th Amendment, the logic of Saenz would apply and the states would have to respect it unless this liberty was somehow not "fundamental."

This could be upheld for the same reason that Boy Scouts can exclude gay Scoutmasters: expressive association. But, it seems like an awful stretch to me since we aren't talking about imprisoning people for being homosexual or, for that matter, even taking away their right to contract, which allows them to create whatever kind of relationship they want.

I like Volokh's interpretation and hope the case is overturned immediately, if not sooner.

This has the dubious merit of being less intelligent than anything in the Nebraska judge's opinion. Any judge who rules contrary to the wishes of 50.000001% of "the people" is subject to removal. Great. Any "conservatives" want to talk to Herb about this?

The primary amendment in the federal Constitution that directly impacts the states is the 14th.

The truth is: Americans will let it go on and on and will wake up some day and find out that Judges rule our counrty. Just think back a couple of months ago when we let 3 Federal Court Judges and a Supreme court Judge VIOLATE the law and neither the MSM, the blogers, Our Congress and our Justice department did a damned thing about it.

Shame, Shame on us.

James, this is a perfect example of the difference between a liberal and a so called conservative. The ninth admendment specifically says that rights do not have to be enumerated by the constitution in order to be rights held by the people. If you do not see that 'intimate associational rights' are inherent in your being a human being the more is the pity. You would allow the government to take away your rights to marry whatever other consenting adult would have you. I would not.

The Nebraska judge's op will be swiftly and thoroughly reversed on appeal, which is how the system is supposed to work.

"Intimate association" has an uncertain but real pedigree, as in the cases holding that parents have the right to educate their children as they see fit---not, surely, something that the conservatives wish to see overturned. This theory was the logical basis for the "gay scoutmaster" decision a few years back, but I think the Court's hostility to the theory led it to rely on "expressive association," which made little sense in context & is now giving some trouble in the Solomon Amendment case (with the universities trumpeting their right to restrict their associations with anti-gay groups lest their "expression" of anti-gayness be inferred).

CitzCom