Will the Court send marriage back to the states?

The conventional wisdom is that a Roe v. Wade version of same-sex marriage is about to happen.  Some, like my friend Jazz Shaw, even think that it'd be good for conservatives.  I guess he thinks it will settle the issue and then we can talk about deficits and spending.

I have no idea about the forthcoming opinion.  However, I do believe that this is a bit more complicated than the abortion decision from 1973.  Also, a same-sex marriage decision won't settle any issue for conservatives.  After all, have we stopped talking about abortion since it was legalized?  I don't think so.

First, same-sex marriage is legal in some states already.  Other states have seen judges overturn a ban voted on by citizens.  It's already happening without the Supreme Court.  

Second, some states like Texas have constitutional amendments that define marriage between a man and a woman.  Are you going to tell 70% of Texas that their vote was worthless?    

Third, what happens when you create a right by judicial fiat rather than a constitutional amendment?  It creates all kinds of unintended consequences, as was explained in a Union Leader editorial:

The U.S. Supreme Court, and those urging it to overturn individual state laws regarding gay marriage, should be wary of unintended consequences. The Wall Street Journal cited some of them in a noteworthy piece this week.

“Such a decision would also raise questions about what comes next. If a relationship characterized by love and commitment becomes a Constitutional right to marry, then no state restriction can withstand judicial review.

This applies to the number of people eligible to marry, the duration of the contract, and the nature of the individuals eligible to marry (age, degree of genetic relation and so forth). This is not meant as a parade of horribles, but it is a warning that the Court will find itself hearing many cases challenging any state regulation of marriage.’’

Further, warned the Journal editorial, “there may also be consequences for religious liberty if gay marriage becomes a right rather than a legal contract. Is it discrimination if a private institution such as a church or mosque recognizes only traditional matrimony within its private sphere?’’

Good questions, all. The court needs to consider them carefully.

What about religious schools?  Just look at the confusion with Obamacare.    

Are we going to shut up black preachers who say that homosexuality is a sin?  What about the Muslim baker?  Or the Catholic photographer who refuses to take pictures?  Will all of these people now be violating someone's right because their faith tells them that same-sex marriage is wrong?

Therefore, I would not be surprised if five justices punt and conclude that it's all a bit too complicated for nine human beings to decide.

After all, who said that nine humans in robes know what the definition of marriage is?  Or should overturn something that has been around a lot longer than the U.S. Constitution itself?

Put me down in the minority.  I believe that five justices will decide that sending it back to the states is a better option.  

Again, I don't see five justices turning our culture upside-down and creating a constitutional crisis with many states.   

P.S. You can listen to my show (Canto Talk) and follow me on Twitter.

The conventional wisdom is that a Roe v. Wade version of same-sex marriage is about to happen.  Some, like my friend Jazz Shaw, even think that it'd be good for conservatives.  I guess he thinks it will settle the issue and then we can talk about deficits and spending.

I have no idea about the forthcoming opinion.  However, I do believe that this is a bit more complicated than the abortion decision from 1973.  Also, a same-sex marriage decision won't settle any issue for conservatives.  After all, have we stopped talking about abortion since it was legalized?  I don't think so.

First, same-sex marriage is legal in some states already.  Other states have seen judges overturn a ban voted on by citizens.  It's already happening without the Supreme Court.  

Second, some states like Texas have constitutional amendments that define marriage between a man and a woman.  Are you going to tell 70% of Texas that their vote was worthless?    

Third, what happens when you create a right by judicial fiat rather than a constitutional amendment?  It creates all kinds of unintended consequences, as was explained in a Union Leader editorial:

The U.S. Supreme Court, and those urging it to overturn individual state laws regarding gay marriage, should be wary of unintended consequences. The Wall Street Journal cited some of them in a noteworthy piece this week.

“Such a decision would also raise questions about what comes next. If a relationship characterized by love and commitment becomes a Constitutional right to marry, then no state restriction can withstand judicial review.

This applies to the number of people eligible to marry, the duration of the contract, and the nature of the individuals eligible to marry (age, degree of genetic relation and so forth). This is not meant as a parade of horribles, but it is a warning that the Court will find itself hearing many cases challenging any state regulation of marriage.’’

Further, warned the Journal editorial, “there may also be consequences for religious liberty if gay marriage becomes a right rather than a legal contract. Is it discrimination if a private institution such as a church or mosque recognizes only traditional matrimony within its private sphere?’’

Good questions, all. The court needs to consider them carefully.

What about religious schools?  Just look at the confusion with Obamacare.    

Are we going to shut up black preachers who say that homosexuality is a sin?  What about the Muslim baker?  Or the Catholic photographer who refuses to take pictures?  Will all of these people now be violating someone's right because their faith tells them that same-sex marriage is wrong?

Therefore, I would not be surprised if five justices punt and conclude that it's all a bit too complicated for nine human beings to decide.

After all, who said that nine humans in robes know what the definition of marriage is?  Or should overturn something that has been around a lot longer than the U.S. Constitution itself?

Put me down in the minority.  I believe that five justices will decide that sending it back to the states is a better option.  

Again, I don't see five justices turning our culture upside-down and creating a constitutional crisis with many states.   

P.S. You can listen to my show (Canto Talk) and follow me on Twitter.