January 22, 2015
Column #1,743
Will The Supreme Court Legalize
Same-Sex Marriage?
By Mike McManus

The U.S. Supreme Court will decide whether the Constitution requires states to allow same-sex couples to marry – or do states have the freedom to limit marriage to one man and one woman?

It will review a November decision by the Sixth Circuit Court of Appeals which upheld cases from Michigan, Ohio, Kentucky and Tennessee limiting marriage to opposite sex couples.

That decision came after 20 consecutive recent court cases supported same-sex marriage (SSM). Those cases were appealed to the Supreme Court by supporters of traditional marriage, but in October the court allowed five Circuit Court decisions to stand that overturned state constitutional amendments limiting marriage to one man and one woman.

However the Sixth Circuit Court upheld traditional marriage – creating two conflicting laws of the land. In such cases the Supreme Court often steps in to decide what the law should be. Both sides supported the court’s initiative.

SSM supporters say “We are thrilled the court will finally decide this issue,” said James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender and HIV Project. “The country is ready for a national solution that treats lesbian and gay couples fairly.”

However, Brian Brown, President of the National Organization for Marriage, countered, “It is time for the 50 million Americans who stood for marriage in 30 states to have their day in court.” He’s hopeful for “an eventual victory for the democratic process, religious liberty and the cherished institution of marriage, which forms the very bedrock of our society.”

What is likely to happen?

The tea leaves don’t look good for traditional marriage.

When it allowed five Appellate Court decisions to stand that overturned state constitutional amendments in Virginia, Utah, Oklahoma, Indiana and Wisconsin – the Court knew that same-sex marriage was likely to expand in other states covered by those appeals courts – Colorado, Wyoming, Kansas, West Virginia, North Carolina and South Carolina. That happened and two days later another appeals court invalidated traditional marriage in Nevada and Idaho.

Today gay marriage is legal in 36 states plus Washington DC where 70% of Americans live. However, it is important to note that 11 years ago not one state allowed same-sex marriage, and only in only three states have voters voted for it: Maryland, Maine and Washington.

All of the other 33 states with SSM are the result of decisions by judges.

The Constitution of the United States begins with the words, “We the people” – not “We the judges.” When given an opportunity to vote, 50 million voted for one man, one woman.

Only the Sixth Circuit recognized the legitimacy of the people’s voice. Circuit Judge Jeffrey Sutton, wrote that advocates of same-sex marriage would be better off persuading their fellow citizens than asking federal judges to force the issue:

“When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

However, the Supreme Court unleashed the wave of SSM decisions with two 2013 decisions. By 5-4 the court ruled a key portion of the federal Defense of Marriage Act (DOMA) was unconstitutional. That 1996 law, passed overwhelmingly (342-67 in the House and 85-14 in the Senate), defined marriage in federal law as the union of one man and one woman.

At the time, no state had approved same-sex marriage. But when the court heard arguments on DOMA, nine states had declared SSM legal. Therefore in 2013, the court overturned DOMA to allow federal benefits to SSM couples in states legalizing them.

However, as Jim Daly, President of Focus on the Family, stated, the court “did not create a federal constitutional right to same-sex marriage – as it did for abortion in 1973.”

In a second disgusting case, the Court allowed one gay federal judge who lived with a man, to overturn Proposition 8 in California that 7 million people had voted to limit marriage to one man and one woman.

However, public opinion is shifting. A Pew poll in September reported only 49% supported SSM, down from 54% in February.

Jesus was clear: “a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh.”

Finally, children need both a mother and father.