Forty-two years ago, the U.S. Supreme Court ruled Americans have the constitutional right to terminate a pregnancy, a decision that launched one of the most intense political and social debates in our nation’s history. As activists on both sides observe the anniversary of Roe v. Wade, the high court may be poised to intervene again on an issue of immense social significance and intense debate: the definition of marriage.
Following a 2013 Supreme Court decision stating that the federal government could not withhold spousal benefits from same-sex partners in states where gay marriage was legal, a myriad of challenges were filed against state laws limiting the definition of marriage to the union of one man and one woman. The vast majority of federal judges at the district and appellate levels sided with the plaintiffs and struck down traditional marriage laws and state constitutional amendments.
Last fall, the Supreme Court refused to hear appeals from those seeking to defend traditional marriage laws. However, in November, the Sixth U.S. Circuit Court of Appeals reversed lower court rulings and upheld traditional marriage standards in Michigan, Ohio, Kentucky and Tennessee. On Jan. 16, the Supreme Court agreed to hear the appeal of that ruling.
Liberty Counsel Chairman Mathew Staver says the court has a very important choice to make.
“Will the court ultimately say, ‘Yes, these states that affirm the definition of marriage, that’s fine. Those can continue on?” We don’t know. On the other hand, if they ultimately somehow invented a constitutional right to same-sex marriage, it could be the Roe v. Wade for same-sex marriage and that would have a devastating impact,” said Staver, who says the Sixth Circuit had good reasons for upholding traditional marriage laws.
“Number one, it said the Supreme Court back in the ’70s issued the Baker v. Nelson decision, in which the Supreme Court then dismissed the case for lack of a federal question because there’s no constitutional right to same-sex marriage. They also said that even the Supreme Court’s decision in 2013 regarding the Federal Defense of Marriage Act said that states have the right to be able to define marriage so the federal government should not interfere,” said Staver.
Staver says the court had little choice but to take up the issue now that conflicting appellate court rulings are on the record. Nonetheless, he’s apprehensive about how this case will turn out because of what he considers the court’s lousy approach to the marriage debate in the past.
“The Supreme Court has made a mess out of something very simple. It’s very simple because there’s no constitutional right, never has been and can never construed to be, a right to same-sex marriage in the Constitution. They should have said that a long time ago and we would have been done with this issue,” said Staver.
Even in decisions Staver considers wrongheaded, he says the court has set precedent on the side of traditional advocates. He says the Windsor case from 2013 is a prime example.
“In that case they said multiple times that it is the prerogative of the state to define marriage. I believe marriage predates the states and it’s only an affirmation of what is. But they said it was a states’ rights issue and the federal government should not interfere,” he said.
Staver expects the defense of traditional marriage laws to center on that states’ rights argument. He also anticipates lawyers pointing to the court’s earlier rejection of marriage as a federal issue in Baker v. Nelson and the harm done by concluding children are not disadvantaged by not having both a mom and a dad.
If the Supreme Court does uphold traditional marriage laws, Staver says we can expect a flurry of legal and political activity in states where same-sex marriage has been instituted through the courts.
“I think what would happen is a firestorm in these other states that have overread the 2013 decision as saying there is a constitutional right to a same-sex marriage. If the Supreme Court later this year says no there’s not and states have a right to affirm marriage as one man and one woman, that means these other decisions went too far and went beyond what the Supreme Court had said,” noted Staver.
“Therefore, there will be efforts to set aside those decisions, and/or there will be efforts to re-pass marriage amendments in those states. So the battle will continue and heat up big time,” he said.
Conventional wisdom suggests traditional marriage advocates have an uphill fight at the Supreme Court. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan are likely to back same-sex marriage and Justice Anthony Kennedy has consistently sided with the liberals on the issue.
Staver admits it will be a tough fight, but he believes it should be made easier by Justices Ginsburg and Kagan removing themselves from this case.
“They should be recused. Why? Because while they had the cases of same-sex marriage pending before the court last fall…Ginsburg and Kagan presided over same-sex marriages. They should be recused. They have actually injected themselves into the very issue that was then before the court and now before the court,” said Staver, who is not holding his breath waiting for the two justices to recuse themselves.
“It’s very clear that they should. The statute says that they should, but if they don’t who’s going to force them? There’s no one above the Supreme Court to force a recusal. They are the final word in that respect,” said Staver.
If Ginsburg and Kagan stay on this case and end up being the difference in legalizing same-sex marriage coast to coast, Staver says our justice system will be severely compromised.
“They could choose not to recuse, but if they do , they will certainly undermine the confidence of the people in the court. What may be on trial is not marriage but the validity and the legitimacy and the trustworthiness, or lack thereof, of this Supreme Court,” said Staver.
