• Skip to content
  • Skip to primary sidebar
  • Home
  • About

Radio America Online News Bureau

Supremes Still Likely to OK Gay Marriage

April 28, 2015 by GregC

http://dateline.radioamerica.org/podcast/4-28-whelan-BLOG.mp3

Traditional marriage supporters and legal reporters suggest Tuesday’s oral arguments on the definition of marriage mean the Supreme Court could go either way on marriage, but a respected legal scholar says the track record of the justices shows the odds are still strongly with supporters of same sex marriage.

Justice Anthony Kennedy is seen as the key vote on this issue since five justices are needed for a majority and the four liberal justices are virtually certain to endorse gay marriage nationwide.  Kennedy has been reliably sympathetic to the arguments of gay activists in previous cases, as evidenced by his opinion in Lawrence v. Texas that struck down anti-sodomy laws in 2003 and his 2013 ruling in Windsor v. United States that overturned the federal government’s ban on same sex marriage.

On Tuesday, however, the justices heard arguments on whether states have the right to define marriage for themselves and whether states should be forced to recognize marriages legally performed in other states.  Observers noted Kennedy’s obvious reluctance to redefine the institution of marriage.

“The word that keeps coming back to me is ‘millennia,'” said Kennedy. “This definition has been with us for millennia. It’s very difficult for the court to say, ‘Oh well, we know better.'”

Many traditional marriage activists see this legal battle as an uphill climb, especially just two years after Windsor.  But those words from Kennedy clearly raised their hopes.

“For months, we’ve endured a barrage of claims that it is “inevitable” that the Supreme Court will issue a ruling imposing same-sex ‘marriage’ on the entire nation. Yet today’s questioning from the justices themselves makes clear nothing is inevitable,” said National Organization for Marriage President Brian Brown in a message to supporters.

Ethics and Public Policy Center President Ed Whelan is also an ardent defender of traditional marriage, but he is not expecting good news when the court renders its decision in June.

“I come out of oral argument with the same pessimistic view with which I went in.  When you look at Justice Kennedy’s record, what he’s written, what he’s done over the past twenty years, I think he is a very very likely vote to invent a constitutional right to same sex marriage,” said Whelan.

Whelan is also insistent that trying to determine the court’s decision based on oral arguments is a fool’s errand.

“I’m simply not going to assign much weight to any particular passage in the oral argument.  Anyone who’s attended these arguments knows that it’s a rather chaotic affair.  Justice Kennedy’s questions are sometimes coherent, sometimes not.  Same for the other justices,” said Whelan.

He says Kennedy’s concern over millennia of tradition may only be a smokescreen.

“I think he may have had an interest in appearing open-minded, to appear as though he hadn’t made up his mind, but I’m very skeptical,” he said.

Whelan says over 25 years of Kennedy votes and opinions tell him a lot more than one oral argument.

“I would assign far greater weight to what Justice Kennedy did two years ago in Windsor, far greater weight to the Supreme Court’s denial of review last October from the four courts of appeals that had struck down state marriage laws, far greater weight to the Supreme Court’s incomprehensible refusal to stay the district court ruling in Alabama,” said Whelan.

Whelan’s pessimism is not an admission that traditional marriage forces have the weaker legal argument.  On the contrary, he firmly believes the Constitution is on the side of the states.

“The Constitution clearly leaves the matter to democratic processes, but if you’re a living constitutionalist like Justice Kennedy who believes the Constitution means whatever you want it to mean, then you can make things up as you go along and no argument I’m going to make is going to have much of an impact,” said Whelan.

Same sex marriage advocates say their case is solidly backed up by the equal protection clause of the 14th amendment to the Constitution, which ensured the same rights to all Americans upon the abolition of slavery.  Whelan says that argument is far weaker than it seems.

“It’s far-fetched to read the 14th amendment to read that the very sort of laws that existed everywhere at the time that the 14th amendment was adopted and existed everywhere until 2003 are now to be deemed unconstitutional, even though no one thought that the 14th amendment had anything to do with altering the male-female definition of marriage,” said Whelan.

Another reason many traditional marriage supporters hold out hope for either a win or a more limited ruling at the Supreme Court is because the justices are reportedly wary of issuing another sweeping decision that may only further polarize the nation in the way that the 1973 Roe v. Wade decision did on abortion.

Whelan says there’s no reason to think that will be a mitigating factor in this ruling.

“No, I think you have in Justice Kennedy and other justices a real extreme view of judicial power.  As Justice Kennedy said in the Planned Parenthood v. Casey case that ratified Roe two decades ago, he expects that the people acquiesce in whatever the court does.  So I put nothing beyond what Justice Kennedy and other members of this court might do,” he said.

As for the long-term view, Whelan says marriage is already in deep trouble thanks largely to the way heterosexuals have sullied the institution and triggered an out-of-wedlock birth rate of 40 percent and rising.  He says that is simply unsustainable.

“We’re transmitting the pathologies of out-of-wedlock birth from generation to generation in a way that will make it very difficult to sustain the sort of civilization we’re used to having,” said Whelan.

He says championing “a thriving marriage culture” is the way out of this mess but insists same sex marriage will only make that harder.

“I don’t see how we can do that if five justices on the Supreme Court believes that the Constitution renders irrational any connection between marriage and procreation,” said Whelan.

“If marriage is redefined away from its core mission, it’s going to perform that mission less well and the consequences will be severe,” he said.

Standard Podcast [ 8:48 ] Play Now | Play in Popup | Download
Share

Filed Under: Podcasts

Reader Interactions

Primary Sidebar

Recent

  • Biden’s Inflation Reality Check, Joe Wilts Under Leftist Pressure, Education Sec. Flunks Reagan 101
  • U.S. Navy Thwarts Houthi Attack, The Israel-Hamas Pause, The U.S.-Canada Border Explosion
  • Black Friday Political Gifts for 2023
  • What We’re Politically Thankful for in 2023
  • Climate Doomsday Reality Check, Biden Way Too Soft on Iran, Insane Border Wall Blame Game

Archives

  • November 2023
  • October 2023
  • September 2023
  • August 2023
  • July 2023
  • June 2023
  • May 2023
  • April 2023
  • March 2023
  • February 2023
  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010
  • September 2010
  • August 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009
  • September 2009
  • August 2009
  • July 2009
  • June 2009
  • May 2009
  • April 2009
  • March 2009
  • February 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • August 2008
  • July 2008

Copyright © 2023 · News Pro on Genesis Framework · WordPress · Log in