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High Court Unlikely to Settle Gay Marriage Issue, Experts Say
Pete Winn
Senior Staff Writer
(CNSNews.com) - Last week's decision by the California Supreme Court establishing homosexual marriage there has raised a number of questions, one of them being whether the U.S. Supreme Court will eventually take up the issue. Some of the nation's top legal experts disagree in their answers.
Brigham Young University law professor Lynn Wardle told Cybercast News Service that the homosexual marriage issue is unlikely to go directly before the nine justices of the High Court.
"The Supreme Court of the United States does not have the authority to reverse or review an interpretation of the California constitution - that is not the business of the U.S. Supreme Court," Wardle said.
"It is possible, if the decision of the California Supreme Court violated some provision of the U.S. Constitution, that the U.S. Supreme Court could take it up," he added. "For instance, if they had said, 'Black gay couples could get married, but not White gay couples.' Or if they said, 'Protestant lesbians can marry, but not Catholic lesbians.' That would clearly violate a provision of the U.S. Constitution, as the supreme law of the land."
But there is no provision in the U.S. Constitution that guarantees and protects marriage, Wardle pointed out.
"That is one reason why there is a movement to get a federal marriage amendment," he said. "Some people think there should be that kind of a provision to protect one of the basic institutions of society. And there are provisions like that in many national constitutions. But the U.S. Constitution doesn't have that kind of provision --at the time ours was written, it simply wasn't an issue."
New York Law School professor Albert Leonard, editor of Lesbian/Gay Law Notes , meanwhile, told Cybercast News Service that marriage is almost always regarded as a question of state law, and the Supreme Court is unlikely to pass judgment on the California's court's decision.
But Leonard does see a way that the Supreme Court might end up getting involved - one centering on the proposed voter initiative that groups are trying to get qualified for the ballot this November.
"If the secretary of state out there in California certifies the initiative that has been submitted to amend the state constitution, and it goes on the ballot in November and it passes, it could be challenged as a violation of the federal constitution," Leonard said.
"It could be claimed that it violates the 14th Amendment rights to due process and equal protection. They could say that it is inconsistent with Loving vs. Virginia, the (U.S Supreme Court decision) which struck down bans on interracial marriage, and it is inconsistent with Romer vs. Evans , the 1996 case that struck down the Colorado anti-gay constitutional amendment."
But even if the Supreme Court did decide to take on the same-sex issue, Leonard said that wouldn't automatically mean that the Court would find a California amendment unconstitutional, or that same-sex couples were entitled to marry anywhere in the United States.
Leonard added that he thinks those pushing for an initiative in California are "gambling."
"They are putting a lot of chips upon the table," he said, "because they might win a vote overruling the California court's decision from last week, but they might place the issue in play before the Supreme Court for the whole country, and it's a roll of the dice how it will turn out."
Attorneys for the Alliance Defense Fund filed a petition Thursday with the California Supreme Court.
Make media inquiries or request an interview with Pete Winn.
Subscribe to the free CNSNews.com daily E-brief.
E-mail a comment or news tip to Pete Winn.
Brigham Young University law professor Lynn Wardle told Cybercast News Service that the homosexual marriage issue is unlikely to go directly before the nine justices of the High Court.
"The Supreme Court of the United States does not have the authority to reverse or review an interpretation of the California constitution - that is not the business of the U.S. Supreme Court," Wardle said.
"It is possible, if the decision of the California Supreme Court violated some provision of the U.S. Constitution, that the U.S. Supreme Court could take it up," he added. "For instance, if they had said, 'Black gay couples could get married, but not White gay couples.' Or if they said, 'Protestant lesbians can marry, but not Catholic lesbians.' That would clearly violate a provision of the U.S. Constitution, as the supreme law of the land."
But there is no provision in the U.S. Constitution that guarantees and protects marriage, Wardle pointed out.
"That is one reason why there is a movement to get a federal marriage amendment," he said. "Some people think there should be that kind of a provision to protect one of the basic institutions of society. And there are provisions like that in many national constitutions. But the U.S. Constitution doesn't have that kind of provision --at the time ours was written, it simply wasn't an issue."
New York Law School professor Albert Leonard, editor of Lesbian/Gay Law Notes , meanwhile, told Cybercast News Service that marriage is almost always regarded as a question of state law, and the Supreme Court is unlikely to pass judgment on the California's court's decision.
But Leonard does see a way that the Supreme Court might end up getting involved - one centering on the proposed voter initiative that groups are trying to get qualified for the ballot this November.
"If the secretary of state out there in California certifies the initiative that has been submitted to amend the state constitution, and it goes on the ballot in November and it passes, it could be challenged as a violation of the federal constitution," Leonard said.
"It could be claimed that it violates the 14th Amendment rights to due process and equal protection. They could say that it is inconsistent with Loving vs. Virginia, the (U.S Supreme Court decision) which struck down bans on interracial marriage, and it is inconsistent with Romer vs. Evans , the 1996 case that struck down the Colorado anti-gay constitutional amendment."
But even if the Supreme Court did decide to take on the same-sex issue, Leonard said that wouldn't automatically mean that the Court would find a California amendment unconstitutional, or that same-sex couples were entitled to marry anywhere in the United States.
Leonard added that he thinks those pushing for an initiative in California are "gambling."
"They are putting a lot of chips upon the table," he said, "because they might win a vote overruling the California court's decision from last week, but they might place the issue in play before the Supreme Court for the whole country, and it's a roll of the dice how it will turn out."
Attorneys for the Alliance Defense Fund filed a petition Thursday with the California Supreme Court.
Make media inquiries or request an interview with Pete Winn.
Subscribe to the free CNSNews.com daily E-brief.
E-mail a comment or news tip to Pete Winn.
Most Recent User Comments
hukkster
5/27/2008 6:07 PM
Whether or not the high court settles the dispute is largely 'irrelevant' to the Christian. While the law of the land and governments of mankind will always make decisions against the will of God, our standard and rule of authority has to remain no less than the Word of God. Only to our own detriment do we negate the Word, 'reinterpret' it and twist it to suit the world or make it more appealing to the world. Our job is to adhere to the Word and to present it to the world. As Spurgeon once said 'I would no sooner defend the gospel but let it loose' !!!!
infotechsailor
5/27/2008 5:14 PM
Oh Come one... the federal government has no place deciding on this issue. This is precisely the kind of 'lets use the federal government to push the will of the majority' mindset that we Christian's have been using to try to control the personal lives' of the people that will eventually backfire as the majority shifts.
I suggest actually following the constitution, and keeping the federal government out of our personal lives. That doesn't mean that the Federal government should have to make a ruling this way or that way... it means the very idea of marriage should be a purely religious contract.
The federal government should only be in the business of enforcing WRITTEN contracts. If any two people want to enter into a written contract to share property or custody of anything that is one thing, but for WE THE PEOPLe to have to obtain a license to get permission from THE GOVERNMENT so that we can make a promise between ourselves and God, Mr. Jefferson's rolling in his grave.
I suggest actually following the constitution, and keeping the federal government out of our personal lives. That doesn't mean that the Federal government should have to make a ruling this way or that way... it means the very idea of marriage should be a purely religious contract.
The federal government should only be in the business of enforcing WRITTEN contracts. If any two people want to enter into a written contract to share property or custody of anything that is one thing, but for WE THE PEOPLe to have to obtain a license to get permission from THE GOVERNMENT so that we can make a promise between ourselves and God, Mr. Jefferson's rolling in his grave.
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Instead of obsessing over the Bible’s allegedly antigay passages, they should study Mark 16:16-18 and John 14:11-14, which report the words of Jesus himself concerning what true believers should be able to accomplish.
Even the broader faith community doesn’t speak with one voice on homosexuality and same-sex marriage. Unitarian minister Mike Young of Honolulu stated that “Over 400 religious organizations, congregations and clergy from a wide range of faith traditions, signed the interfaith amicus brief in support of the marriage case before the California Supreme Court, voicing their deeply held commitment to end the prohibition against marriage for same-sex couples.” For them, this is a matter of "human dignity and religious freedom." (Honolulu Star-Bulletin, May 17, 2008)