March 26, 2013

Gay "marriage": Before the high court now

The early word on the US Supreme Court taking up the issue of gay "marriage" is that it is "wary" of making a "broad ruling" on the matter.

... during the argument, Justice Anthony Kennedy, who is considered a swing vote, raised concerns about the court entering "uncharted waters" on an issue that divides the states.

Kennedy even raised the prospect of the court dismissing the case, a relatively unusual move that would leave intact a federal appeals court ruling that had earlier struck down the California law, known as Proposition 8.

In a similar vein, Justice Samuel Alito also urged caution, noting that gay marriage, as a concept, is "newer than cellphones and the Internet."

None of the justices indicated support for the Obama administration's favored solution, which would strike down Proposition 8 and require the eight states that already recognize civil unions or domestic partnerships to allow gays and lesbians to marry.

Interesting in this debate are the fairly recent comments by left bloc SCOTUS Justice Ruth Bader Ginsburg who "has long harbored doubts about the ruling."

"It’s not that the judgment was wrong, but it moved too far, too fast,” she said last year at Columbia Law School.

Ginsburg has suggested that the Supreme Court in 1973 should have struck down only the restrictive Texas abortion law before it and left broader questions for another day. The analogous approach four decades later would be to strike down California’s ban on same-sex marriage but leave in place prohibitions in about 40 other states.

As I've argued here and elsewhere numerous times, I don't understand why gay Americans do not argue from a 14th Amendment equal protection angle -- that is, don't be hung up on the term "marriage;" argue that gays are entitled to the same governmental benefits as straight couples whether a state has defined the union as "marriage" or a "civil union." Overlawyered's Walter Olson makes much the same point today here.

Discussion-hindering comments like these aside, I think in 20-30 years not many people will care much about the issue. But if, like the author of the linked comments feels, gay "marriage" becomes defined as a "civil right," then automatically the religious beliefs of Catholics, many Protestants, Conservative and Orthodox Jews, and Muslims become "bigoted." And "bigoted" beliefs beget "discriminatory" actions. And this is then where the federal government could step in.

Don't think so? Well, we've already seen how our current administration wanted religious-based institutions to violate certain principles with regards to implementation of ObamaCare. And then consider something which I heard a caller to a pundit show mention -- an act of Congress which stood for almost 100 years: The Edmunds–Tucker Act. This was passed in response to the Mormon Church's stance on polygamy. Just check out the punitive federal actions against the LDS Church at the link.

Which brings me to an issue which I really have yet to get a decent response to from outspoken supporters of gay "marriage." That is, if the Supreme Court orders that two homosexuals are permitted to "marry," then why not other sorts of unions ... like the aforementioned polygamy, for instance? Less than two years ago a family planned to file a lawsuit challenging the [state] law against polygamy on -- wait for it -- 14th Amendment equal protection grounds. And consider what one of the judges who voted to overturn California's Proposition 8 said: “Gender no longer forms an essential part of marriage.” To which I asked,

... what is to prevent some judge from claiming "The number involved in a relationship no longer forms an essential part of marriage"? Or some other manifestation thereof?

Indeed. What would? And why not, supporters of gay "marriage?" Would you have an issue with such unions (like polygamy) being legal? Under equal protection grounds?

Or, how 'bout this: Should the government get out of the "business" of marriage altogether ... and leave it to churches or whatever?

Posted by Hube at March 26, 2013 04:26 PM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)

As you know, I am against it from a religious standpoint. Like you, however, I do believe that they should file for equal protection under the 14th Amendment so they could get the same benefits as anyone else.

Of course, that point goes over the head of its supporters, who equate any form of opposition to "bigotry."

Posted by: Carl at March 26, 2013 05:33 PM

I asked the Facebook crowds this question today: If Mr. Muslim immigrant from Somalia brings his five wives, should the federal government honor his "marriage"? If you are for gay marriage and the answer is no, why not?

Nobody answered the question! They just continued to prattle on about gay people, as if the decisions that come down from the Supreme Court this summer won't open a whole new can of worms.

Posted by: Douglas Ernst at March 26, 2013 11:46 PM

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