Volokh’s Orin Kerr pens a Generic Op-Ed for Judge Walker’s SSM Decision. He’s invited all publications to use it…

Just pick the right word you want in parenthesis — conservatives pick the first word, and liberals pick the second.

FOLLOW THE CONSTITUTION

Judge Walker’s decision on same-sex marriage is a reminder of the proper role of judges in our society. Above all else, judges should follow the Constitution. For that reason, Judge Walker’s decision should be [condemned/celebrated].

Judge Walker showed from the outset of the Prop 8 case that he had one priority: To [subvert/follow] the Rule of Law. His efforts to televise the trial, later overturned by the Supreme Court, show his true intent. Judge Walker wanted to televise the Prop 8 litigation to make sure it would be a [show trial/teaching moment] for the advocates of same-sex marriage. Although the Supreme Court did overturn his decision, Judge Walker pressed on. He never backed down. It is hard to believe that he is a Bush appointee — but this is San Francisco, after all.

Now the case heads to the Ninth Circuit Court of Appeals. The Ninth Circuit is a famously [lawless/independent] circuit. The next stop is the Supreme Court, which will probably divide 5–4 in this case. The swing vote is Justice Kennedy. Although his vote is often unpredictable, Justice Kennedy has tended to vote with the Supreme Court’s [activist/moderate] wing in cases related to homosexuality. We hope that Justice Kennedy rejects [liberal elite opinion/bigotry], follows the Constitution, and [upholds/rejects] Prop 8.

Public opinion about same-sex marriage is changing. The Supreme Court should recognize this and [step aside/ speed it along]. The choice is clear: It a choice between following the true Constitution and caving in to public pressures and opinion. We urge the Supreme Court to show the courage to follow the Constitution just as the Framers intended.

On the issue of standing, if the 9th U.S. Circuit Court of Appeals dodges the bullet and makes no decision on the merits it will be a sweet irony. After all, the Circuit Court wouldn’t want to be seen as a bunch of activist judges.

Me, I’m perfectly happy for the issue to go to the Supreme Court. The days when the courts get out ahead of public opinion are gone; courts are all followers now. And on same sex marriage, the tide has turned.

UPDATE – From a NYTimes editorial today:

The most intriguing part of the judge’s order on Thursday suggested that there may be no one with the proper standing to appeal the case to the Ninth Circuit. The State of California refused to defend Proposition 8 at the trial, so Judge Walker allowed a group called ProtectMarriage.com, which organized the campaign for the proposition, to present the defense. But he said the group has been unable to show that it was harmed by his ruling, and that ordinarily only the state could appeal a case like this. Because the state supports his ruling and won’t appeal it, he said there may be no appellate hearing.

That question is up to Ninth Circuit. But even if Judge Walker’s ruling stands in California, it would be a shame if the case stopped there. Only through appeals, first at the Ninth Circuit and, ultimately, the Supreme Court, is there a chance that the principles set down by Judge Walker will apply to the entire country. Yes, there is the possibility that the judgment could be struck down, but it is sometimes necessary to take big risks to get important results, as the lawyers behind this lawsuit have demonstrated. If same-sex couples in California have the constitutional right to be part of the mainstream of society, then so should every couple in America.