In one of the funniest law review articles ever written, Nelson Lund was not only one of a tiny handful of law professors to argue that Bush v. Gore was defensible on its own terms, he argued that it was a straightforward application of the Court’s equal protection precedents. Apparently, the equal protection clause could be read expansively enough to prohibit different voting standards in different counties (and yet narrow enough not to apply to any of the countless other cases in which this occurs, including the process that gave Florida’s electoral votes in 2000 to Bush, for reasons neither Lund nor the Court has ever bothered to articulate.)
You’ll be shocked to find out that since same-sex marriage is the current question of interest Lund is back to arguing the more traditional conservative position that the equal protection clause has essentially no content*, and that past discriminatory practices are self-justifying. What a surprise!
I’m also not sure why he thinks it’s so devastating to point out that Obama and Clinton share his position about same-sex marriage. Here’s my easy answer — they’re wrong! And Obama’s position is transparently irrational and incoherent! Arguments from personality cults may work for Republicans and Reagan but to those of us who prefer to think it’s pretty weak sauce.
*Unless it can be used to prevent local school boards from integrating or to protect white prospective college students, of course.