Regarding prostitution, you are correct. The secondary effects are clearly enough to constitute a compelling cause for regulation. My point is, a fair argument can be made that an outright ban is not narrowly tailored — that SOME prostitution does not offend the state's interests. You can force prostitutes to take a class explaining how they are entering an exploitative industry. You can require STD testing. If a state bans prostitution outright, rather than applying a more complex plan of regulation, it is unnecessarily burdening the right to bedroom privacy created in Griswold and Lawrence.

Of course, I am making these arguments to show how slippery the slope might be. I don't actually want to see prostitution legalized.

Some of the rulings were screwball, but I am not sure where else you could find similar case law.

The right to marry has trsaditionally been accorded to individuals not couples. My daughter and I, as a couple, do not, nor should we, have the right to marry each other. But assuming that we meet certain minimum requirements (such as age, no existing marriage, etc) we are each free to marry another person of the opposite sex. Traditionally marriage has been between one man and one woman. Certainly the people should have the right to vote on whether that definitionshould be changed.

I think it's going to be a few decades before we'll see this at the Supreme Court. They won't have the votes until the base of four conservative justices is broken apart. On that day, I hope the Court remembers that the Due Process clause must not be used to destroy federalism, but rather to reign in the absurd outliers (i.e. Griswold v. Connecticut, Lawrence v. Texas, and Loving v. Virginia).

Lawrence v. Texas was decided correctly. The government has no business in preventing consenting homosexuals from doing what they want. The main problem is taking these outlier cases and extending them. It's not far-fetched to imagine an argument for creating a fundamental right of prostitution … If people have the "right of privacy" to have sexual relations in their home, shouldn't consenting adults be permitted to make contracts for sex — assuming it is not done in public and no one is harmed? If the "fundamental right" is privacy in the bedroom, then the anti-prostitution laws are not narrowly tailored to defeat the evils of destroying marriages, spreading disease, etc. Certainly, you can craft a law that allows prostitution for unmarried individuals if proper STD testing is conducted.

Poof. There go the anti-prostitution laws in 40-some states. That is the danger in extending holdings from these outlier laws to mainstream laws. That's how Griswold v. Connecticut (overruling an no-contraceptive law) ended anti-abortion laws. Our parents tell us not to do something just because everyone else is doing it, but the widespread implementation of such a law is quite probative of whether we are dealing with a "fundamental right."

We need to separate what moral views we have from what we believe is the proper role of the judiciary in a democracy built on federalism.

Does it make any sense to look at case law from polygamy cases for guidance?

Having decided that Proposition 8 only "amended" the state constitution, it necessarily followed that the law should be applied only prospectively. To apply Proposition 8 retroactively might suggest that it constituted a "revision" to the constitution.

The battle may not be over yet. Rumor has it that David Boies and Ted Olson (!!??) may challenge yesterdays decision in the federal courts.