How the U.S. Supreme Court biased its own decision on same-sex marriage
The court’s perspective seems to have shifted radically since it last considered the issue of same-sex unions in June o2013. Then, the Supreme Court rejected parts of the 1996 Defense of Marriage Act (DOMA) by holding that legally married same-sex couples must receive the same federal benefits as their heterosexual counterparts. The court’s opinion in United States v. Windsor did not hold that same-sex marriage should be recognized in every state.
Quite to the contrary, the Supreme Court noted, “The definition of marriage is the foundation of the state’s broader authority to regulate the subject of domestic relations with respect to the ‘protection of offspring, property interests, and the enforcement of marital responsibilities.'”
The Windsor holding emphasized each state’s well-established right to determine the definition of marriage. If Justice Kennedy and four other Supreme Court Justices believed then that the right to marry was fundamentally protected by the Constitution, they should have simply reflected that in their Windsor opinion.
They did not.
In fact, the Windsor opinion provides ample justification for the Supreme Court, as Justice Thomas recently suggested, to preserve the status quo until it hears the cases. “When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review,” Thomas said.
The latest Gallup polls do suggest a slight majority of all Americans (55 percent) support legally recognizing same-sex unions and a large majority of younger Americans polled favor the policy change. At the same time, those trends have not yet resulted in states amending their marriage definitions.
The current momentum in favor of legally recognizing same-sex marriage is almost entirely due to judicial interpretation. Of the 37 states currently allowing same-sex marriage, only 11 of them have recognized it through legislative action or popular vote.
By refusing to stay the orders of federal judges striking down state marriage definitions, the Supreme Court has created a situation completely unfair to the consideration of the issue before the court, same-sex couples rejoicing at the legal recognition of their marriage, and the citizens of states that define marriage as between a man and a woman.
Even those who oppose same-sex marriage realize the untenable position of legally recognizing marriages around the nation and then suddenly declaring them to be void. While Americans can and do choose to end their marriages, few would tolerate the government invalidating their legal union involuntarily. Given the court’s willingness to let legal recognition of same-sex marriages proceed, a decision anything short of protecting them with the full force of the Constitution would shock the nation.
If the unlikely event that the Court does issue an opinion contrary to the momentum of their own creation, the court will have needlessly caused heartache to those who welcome the change and an administrative nightmare for the states.
The Supreme Court will unmistakably have the final say on whether states are allowed to limit the definition of marriage based on sexual orientation, but they should have either said it sooner or waited to make the change until they were ready.
The highest court in the land needs to start acting like it.
