Supreme Court Agrees to Define Marriage

I should perhaps mention the libertarian perspective here.  Conservatives find much libertarian thought congenial and they might find the libertarian perspective on marriage helpful as well in a legal environment that is hostile to the traditional view of marriage.

Libertarians think governments should butt out of involvement with marriages altogether. Libertarians hold the view (And I know some who have put it into practice) that marriage is simply an agreement between two people and that such an agreement or contract may be whatever suits the couple concerned.  The contract could be formalty registered as a contract in some way and then it would be just another contract under normal contract law.  And two homosexuals could obviously make contracts with one another.

But people have always wanted heavy social recognition of such contracts and that is where churches, mosques or temples have always figured prominently.  So a traditional marriage is basically a religious occasion.  And until about a century ago, church records were the only formal records we had of who had married whom.  Libertarians ask:  Can that be so hard to go back to?  The traditional nature of such arrangements should be attractive to conservatives.

And churches can of course have different views about who gets their blessings.  Episcopalians would probably marry dogs if asked and Catholics won't marry divorced people.  But that is just part of the rich texture of society and as long as nothing is forced upon us, let people go to hell in their own way (As Elizabeth I once said to the King of Spain).

So ALL marriage laws should be abolished and replaced by contracts that can  be solemnized in any way that can be agreed on by the parties concerned.

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For Americans who maintain that marriage is between one man and one woman, gear up for the next battle. On Friday, the Supreme Court announced it had agreed to hear cases regarding same-sex marriage. Given the track record of activist judges on the High Court, we are not overly optimistic the justices will rule in favor of the third pillar of Liberty.

In October, the Supreme Court declined to hear cases from five states seeking to preserve their lawful, voter-approved definitions of marriage. By choosing not to take on those cases, the Supreme Court left in place lower court rulings overturning laws on same-sex marriage.

And two years ago, the Supreme Court tossed Section 3 of the Defense of Marriage Act, ruling that the federal government is bound to recognize same-sex marriages from states in which they are legal. The justices did not, however, go so far as to declare same-sex marriage a right – yet.

The result of that decision led to most of the lower courts striking down numerous state bans on same-sex marriage.

There was one exception: The Sixth Circuit Court of Appeals upheld traditional marriage laws in Michigan, Ohio, Kentucky and Tennessee. Judge Jeffrey Sutton said in that ruling it was not the place of the courts to decide such an important social issue. What a novel concept. “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,” Sutton wrote. “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.”

Given the split among the circuit courts, it was almost certain the Supreme Court would step in to settle the dispute.

It’s worth noting the timing of the Court’s announcement. There is growing capitulation among Republicans on the issue, and the party’s candidates offered little debate over marriage during the campaign season. The GOP’s new congressional majorities are occupied with other agenda items. Should the Supreme Court rule to redefine marriage (as many political pundits presume it will), the GOP could be further divided on this issue leading up to the 2016 presidential election.

Regardless of whether the Supreme Court discovers a constitutional right to same-sex marriage, any Republican candidate who has or continues to oppose same-sex marriage will be portrayed as a bigot. But a Court ruling could move the needle further. There will also be many potential candidates who would argue that, since the Court ruled, the matter is settled.

On the other hand, there could also be ample opportunity for candidates to stand firmly on principle. Ramesh Ponnuru of National Review notes, “If the Supreme Court does issue such a ruling, Republicans in the presidential primaries will be under a bit more pressure to say that they back a constitutional amendment reversing the decision and to say explicitly that they’ll appoint justices who don’t tend to agree with that sort of decision.”

Aside from the political fallout for the GOP from a Supreme Court decision that is presumed to side with the homosexual agenda, the greater impact will be on the people. A majority of voters in a majority of states have said that marriage is a sacred institution that does not change at the whim of progressive lobbyists and activist judges. Their voice will have been rejected.

And don’t think for a moment that a ruling redefining marriage will have no impact on churches and religious liberty in America. If the Supreme Court can redefine marriage, then is that same Supreme Court not powerful enough to impose its will on those who preach, teach and believe that the only true marriage is that between one man and one woman? Where does it end? Bakers, florists and photographers are already under assault – just wait until same-sex marriage is a “constitutional right.”

America had better wake up, because regardless of which way the Court rules the issue of what constitutes marriage isn’t going away any time soon.

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Posted by John J. Ray (M.A.; Ph.D.).