This is the Cato Daily Podcast for Friday, August 6, 2010.

I'm Caleb Brown.

A ban on gay marriage is struck down in California, but what is the constitutional

basis? Many conservatives say it's no less than judicial activism,

but it's not precisely clear what aspect of the Constitution is being rewritten.

I'llia Shapiro, senior fellow in constitutional studies at the Cato Institute, offers his thoughts.

On a technical legal basis, he found that Prop 8 violated the due process and equal protection clauses of the 14th Amendment.

That is, marriage is a fundamental right, he found, and there is no legitimate interest

that the state has in differentiating between same sex and opposite

sex marriages with respect to that fundamental right.

And that kind of bleeds into the equal protection point, which is exactly that.

If you have this law, it has to have equal applicability to everybody.

So they're really intertwined.

And indeed, the way that the judge set up

the standards of review and his elaborate presentation

and evaluation of Supreme Court precedent shows that basically

he didn't buy any of the arguments by the made by the proponents of Prop 8 for why California or any state I guess can

prevent gay marriage.

This has been described by some conservatives as egregious judicial activism.

Well we at Cato and libertarians more broadly, nobody's a fan of activism, but we do want an active judiciary.

If the government violates our rights, the judges, courts are supposed to be there to strike

down those actions.

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