I was on vacation last week, so I didn't get to weigh in on the big news from New York about gay marriage. Here's what I like the most about what happened: It's now up to opponents of gay marriage to argue that it's unconstitutional to give someone the right to marry. That's a subtle tweak to this whole debate.[pullquote]Now, anti-gay rights activists—whose basic position is that allowing gays to marry offends them—are stuck trying to take rights away.[/pullquote]

The way the debate has previously been framed—as it was with the 2006 ruling upholding Washington State's Defense of Marriage Act—proponents of gay marriage had to prove that anti-gay marriage rules infringed on their constitutional rights. At a gut level, it's pretty obvious that prohibiting someone from getting married is an affront to their rights, but proving it in court is tricky. Does the Constitution give gays the right to marry?

In contrast, proving that giving someone the right to marry violates the Constitution is much trickier. It shows what the weak link in the anti-gay marriage argument has been all along—fundamentalists' contention that the gay marriage debate is somehow a fight about their rights as opposed to what it's always been: A fight for gay people's rights. Now, anti-gay rights activists—whose basic position is that allowing gays to marry offends them—are stuck trying to take rights away. That's a losing position.

The way our federalist system works, federal law is a floor when it comes to granting rights that state laws can exceed. Good job, New York.

If gay rights activists were really really smart, they'd sue New York all the way up to the U.S. Supreme Court. It would be much better if New York's law was the test case as opposed to making a Defense of Marriage law, like Washington State's, the test case. Justice Scalia would have a harder time throwing out New York's law than defending Washington State's.