SCOTUS Gay Marriage Cases
We applaud the Supreme Court’s decision today to review two very important cases concerning California’s prohibition of same-sex marriage (Proposition 8) and Section 3 of the Defense of Marriage Act, which codifies federal non-recognition of same-sex marriage. The Second and Ninth Circuit decisions below – striking down a traditional definition of marriage as a violation of the Constitution’s Equal Protection Clause – are outrageous examples of judicial activism that damage the rule of law, regardless of whether gay marriage is good or bad policy. Only the U.S. Supreme Court can undo the damage.
How the Supreme Court will rule in these two cases is difficult to predict and will depend largely on Justice Kennedy. However, because judicial activism has been the rule rather than the exception in the lower courts when it comes to same-sex marriage, the Supreme Court is more likely to improve the state of the law on this issue than to worsen it.
Moreover, if personnel changes on the Supreme Court during President Obama’s second term alter the chances for a sound ruling on this issue, it will be in a negative rather than positive direction. Accordingly, the rule of law is best served by the High Court deciding the gay marriage issue now rather than later. In its orders granting review today, the Court clearly left itself room to sidestep the marriage issue by disposing of these cases on jurisdictional grounds. We hope the Justices don’t take that non-committal route.
Finally, see “Gay Marriage: What the 9th Circuit was Really Thinking,” our popular response to the Ninth Circuit’s February 7 decision striking down California’s same-sex marriage ban.