Is it the business of the Supreme Court to decide on Same-Sex marriage?

25 Mar

I suppose the strongest argument that it is the Court’s business would be the “full-faith-and-credit” clause of the Constitution, requiring states to honor contracts made in other states.  But that’s hardly what backers of same-sex marriage are concerned about.  Rather, they want the Supreme Court to declare same-sex marriage a right every individual has regardless of state prerogatives (or the 10th amendment) and they want state laws defining marriage in conjugal ways to be deemed unconstitutional.  Issues of jurisdiction and federalism largely

But if their argument stems from the implied “right to privacy” announced/discovered by the Supreme Court decades ago, as so many others have regarding law and human sexuality, then I’m afraid their case will (should) be problematic for them.  After all, sexual choices often have been fairly characterized as private, but marriage never has, either by society or the Supreme Court.  It has always and ever been recognized in society and the Supreme Court as an especially public institution (and usually under the province of state law), with major public stakes, and is most emphatically the public’s business.  We are not talking about what someone does in the privacy of their bedroom, but what society must legally recognize, promote, define, in its marriage and family laws.

Another take on the proper jurisdiction of the Supreme Court came this past weekend from Constitutional law scholar Michael McConnell.  Tuesday and Wednesday of this week, the Supreme Court will hear two cases related to same-sex marriage simultaneously.  (one challenging Prop 8 in California, defining marriage conjugally and one challenging the Defense of Marriage Act signed by Bill Clinton in the 1990s, protecting states from being forced to recognize same-sex marriages contracted in other states and defining marriage, as far as federal law goes, as conjugal).

Here’s McConnell’s editorial.  A slightly different take on what the Court should do is penned by Ed Whelan here and here.

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One Response to “Is it the business of the Supreme Court to decide on Same-Sex marriage?”

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  1. Is it the business of the Supreme Court to decide on Same-Sex marriage? - March 27, 2013

    […] Presbyterian Church (PCA) with his wife, Natalie, and three children, Caleb, Noah, and Sarah Ann. This article first appeared on his blog, The Reformed Mind, and is used with […]

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