Well, you can't win them all.
The Honorable Marty Fledman (yes, that's his name) — a Reagan appointtee — wrote today:
Many states have democratically chosen to
recognize same-sex marriage. But until recent years, it had no
place at all in this nation's history and tradition. Public
attitude might be becoming more diverse, but any right to same-sex
marriage is not yet so entrenched as to be fundamental. See
Malagon, 462 F.3d at 505. There is simply no fundamental right,
historically or traditionally, to same-sex marriage.
The problem with that, of course, is not the "right to same-sex marriage", but the "right to marriage" for same-sex couples. He deliberately hcnages the focus of the inquiry.
I mean, one could say the same thing about interracial marriage, too. There is no "fundamental right to interracial marriage", but that wasn't the issue 50 years ago in the Loving case. In Loving, the issue was whether the right to marriage (which is a fundamental right) applies to interracial couples.
Then, Feldman engaged the problematic (and in this case, silly) slippery slope:
When a federal court is
obliged to confront a constitutional struggle over what is
marriage, a singularly pivotal issue, the consequence of outcomes,
intended or otherwise, seems an equally compelling part of the
equation. It seems unjust to ignore. And so, inconvenient
questions persist. For example, must the states permit or
recognize a marriage between an aunt and niece? Aunt and nephew?
Brother/brother? Father and child? May minors marry? Must
marriage be limited to only two people? What about a transgender
spouse? Is such a union same-gender or male-female? All such
unions would undeniably be equally committed to love and caring for
one another, just like the plaintiffs.
Plaintiffs' counsel was unable to answer such kinds of
questions; the only hesitant response given was that such unions
would result in "significant societal harms" that the states could
indeed regulate. But not same-gender unions. This Court is
powerless to be indifferent to the unknown and possibly imprudent
consequences of such a decision. A decision for which there
remains the arena of democratic debate. Free and open and probing
debate. Indeed, fractious debate.
I think we can say that incestuous relationships would not become consititutional as a result of lifting the ban on gay marriages, if only because incest is against the law and the state as a compelling interest in regulating what are often abusive and non-consensual relationships.
But, you know, the judge played the "parade of horribles" hand.
A few years ago, Feldman made the news when he blocked Obama's moratorium on deep-wll drilling following the BP oil spill. Part of the reason his decision made national news was because Feldman himself held significant financial interests in oil companies when he issued his opinion.
He's also on the FIAS court, which is why your phones are being tapped.