As expected, I got some pushback for saying "I hope the Supreme Court blesses us with" a right to same-sex marriage.

That was a provocative way to say that it will be a blessing if the upcoming Supreme Court cases resolve this issue that is dogging and distorting the political discourse in our country.

Even to say "it will be a blessing" would have been provocative, since it seems to give God credit for whatever good happens. But that usage of "blessing" has constitutional text to support it:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. 

Liberty is a set of blessings, our Founders told us. The human task is to secure the blessings. If the Supreme Court says it has found a liberty — let's say a right to same-sex marriage — we may say that it is securing a liberty that is already there. When someone says "bless you," that doesn't mean that the blessing emanates from the speaker. It's short for "God bless you." It's asking God to deliver a blessing. In the Constitution, what we see is that the Framers believed that God had blessed us with liberty.

So to say "I hope the Supreme Court blesses us" is to identify the Court as the source of the blessing, to put the Court in the place of God, and to prompt and tease those who think the Court improperly makes up rights. That was deliberate and devilish temptation. Thanks for succumbing!

Below the fold are the comments that inspired this post:

1. Gahrie:

This is a perfect example of our country's problems right here. You, a Constitutional law professor, our hoping that the Supreme Court will create a "right" that you favor.

The Supreme Court doesn't "bless us" with rights, or create rights. It protects the ones given to us by our creator and enumerated by the people in the Constitution.

2. MayBee:

Yes, the "blessing us" idea is troubling from a constitutional law professor. Perhaps it is some of her famous humor.

3. alwaysfiredup:

"I hope the Supreme Court blesses us with the requisite constitutional right"

Oh dear lord...

Surely, SURELY, as a law prof you could phrase this to be less off-putting.

4. Chuck:

Prof. Althouse;

Huh?

You "hope the Supreme Court blesses us with the requisite constitutional right..."?

Say what? Since when was the Supreme Court in the business of 'blessing us with constitutional rights'? I thought they were in the business of constitutional interpretation, and working on judicial review of legislation. Not "blessings."

I hope that the Supreme Court "blesses me" with a new Cadillac and a Rolex watch.

Since you are a highly intelligent person, and an expert in constitutional interpretation, I am curious what you think is a plausible basis for the Court to extend such a blessing. Given that whatever the Court decides to bestow as a "blessing," it is taking away from individual states. If the test for reviewing DOMA and California's Prop 8 is not "rational basis," what is the proper test? And if the test is rational basis, how does DOMA or Prop 8 offend?

5. Hagar:

The Supreme Court cannot "bless us" with a non-existent Constitutional right.

It is the word "marriage" that causes the problem for people.

It is not that hard for the Federal Gov't and the States to get out of the "marriage" business. Just declare that for the future "marriage" is a religious ceremony outside their purview, but existing "marriages" will be accepted as Civil Unions for taxes and other secular purposes.

6. ed:

@ Gahrie "The Supreme Court doesn't "bless us" with rights, or create rights. It protects the ones given to us by our creator and enumerated by the people in the Constitution."

You're forgetting the penumbra of the umbrella of the awning of the cockleshell of the reflected shadow on a latrine wall of unenumerated rights as recognized only when someone on the Supreme Court has a wet fart.

Because evidently I do not have the right to not have a federal drone hovering over my yard or a DEA SWAT team breaking down my door, shooting my dogs and handcuffing me on the say-so of a drug abusing informant looking to buy his freedom but two gay men have the right to bugger each other in privacy.

But then again if you look at the various opinions set forth by the multitude of SCOTUS decisions you can find just about any kind of idiotic retarded nonsense because it appears to be more of justifying what the justices want rather than what the Constitution actually has written.

7. Unknown:

I thought Althouse's original post was a tounge on cheek [sic] reference to how we just moved on after the Supreme Court blessed us with Roe v Wade. Her follow comment leaves me scratching my head.

I think the "follow comment" of mine that he's referring to is: "The GOP will be better off if the Supreme Court trumps this political issue. Democrats will may [sic] rejoice publicly, but privately they should curse." I used the word "curse" in deliberate counterpoint to "bless." And this actually should make sense in connection with Roe v. Wade. Politically, the decision undercut the liberals who would have fought for the right and gave huge energy to those who opposed it.

But I don't think a right to same-sex marriage will play out politically the same way. The pro-life movement is propelled by the belief that what's going on in the zone of privacy is the murder of helpless, innocent human beings. Pro-lifers can never move on. There is no corresponding moral compulsion to continue to agonize over what's happening inside someone else's marriage. Even if you think it's terrible and sinful, you can move on. That's the political blessing I foresee.