For thousands of years, all definitions of marriage have defined marriage as the union between male and female only. Yet, today in the US, same sex marriage has become legalized in 36 states. (Baker, 16, 2015) Conservatives believe they should wait for democracy to play out for gay marriage to be legalized whereas others believe the 14th amendment protects homosexuals under the equal protection clause. Due to a strong divide in public opinion, the justices are afraid of facing backlash from conservative states if they rule in favor of gay marriage. Should the justices decide on such an important issue instead of letting the people decide?
Precedents/ Judicial Activism & Restraint
Should the justices strictly adhere to precedents (judicial restraint) or should they actively make policy to reflect cultural changes (judicial activism)? People against gay marriage argue that marriage is a thousand year tradition that has solely been defined as between a man and a woman, even in Ancient Greece, where homosexual practices were common (Baker, 10, 2015). However, proponents for change argue that the definition of marriage has changed with social norms, and that the Fourteenth Amendment guarantees equal protection to all groups, hence justifying legalizing gay marriage for all people. (Baker, 20, 2015)
National supremacy/ federalism
It is controversial for the government to change the legal code of the states that do not yet support gay marriage. Vice versa, the federal government would make gay marriage illegal again in 36 states were it to ban gay marriage. Federal law is generally considered supreme to state law. Should states have the “right” to determine their own laws based on their differences in political culture? In addition, states should have to recognize people as married if they were married in other states due to “full faith and credit”, but that would be equivalent to states making laws for other states. The system essentially would have a loophole where people can get married in another state to be designated as married in a state with no gay marriage.
|Haha I control the right|
of all gays to marry ;D
Justice Breyer and Sotomayor hold a strong stance in favor of gay marriage. Justice Anthony M. Kennedy is widely considered the swing vote. Scalia and Alito are the conservative voters.
The Supreme Court is expected to make objective rulings in support of the Constitution regardless of public opinion and to protect minority interests. However, this is arguably undemocratic in nature and unrepresentative of the people of the United States. Are justices accountable enough to rule on such an important issue? If the justices do rule in favor of gay marriage, would the backlash result in the court losing its legitimacy as a vital branch of government? In addition, there is a question as to whether it is the liberty of the majority to decide on the meaning of marriage. Justice Sotomayor argued that the choice of deciding who to marry or not to marry belongs to individuals, saying that by legalizing gay marriage “we’re not taking anybody’s liberty away”. (“Excerpts”, 2015, 13)
I believe that since marriage is a legal mechanism and has added qualities other than just “couple bonded religiously together”, including taxation, property transferal, and guardianship, gay marriage should be allowed. The argument that gay marriage undermines the values of marrying to procreate is fundamentally flawed, since allowing gays to marry will not necessarily cause heterosexual people to not want to have kids anymore. Heterosexuals should be protected under the equal protection clause and allowed marriage rights just like anybody else. I believe that even though some states strongly with against gay marriage, the court has to take action to protect gay rights, regardless of whether people like it or not. What homosexuals want to do has nothing to do with what religious bigots think. I think if the court makes a decision, it is up to the states to follow the decision. If the states don’t follow the justices’ opinion, then democracy is undermined. In addition, the justices do not respond to any constituents as they stay in the court for life. Thus, politicians shouldn’t worry too much as their lame careers aren’t necessarily in question, unless people misattribute policy failure to the politicians which they always do.
BAKER, PETER. '‘Millennia’ of Marriage Being Between Man and Woman Weigh on Justices'. Nytimes.com, 2015. Online. Internet. 3 May 2015. . Available: http://www.nytimes.com/2015/04/29/us/millennia-of-marriage-being-between-man-and-woman-weigh-on-justices.html?_r=0.
'Excerpts From the Supreme Court Same-Sex Marriage Arguments'. Nytimes.com, 2015. Online. Internet. 3 May 2015. . Available: http://www.nytimes.com/interactive/2015/04/28/us/same-sex-marriage-supreme-court-excerpts.html.