Supreme Court to Decide Constitutionality of Same-Sex ‘Marriage’

Oral arguments in the landmark case are expected to take place in April, with a decision expected by late June.

Supporters of traditional marriage and same-sex 'marriage' activists face off in front of the Supreme Court during the March for Marriage in Washington on June 19, 2014.
Supporters of traditional marriage and same-sex 'marriage' activists face off in front of the Supreme Court during the March for Marriage in Washington on June 19, 2014. (photo: Addie Mena/CNA)

WASHINGTON — The U.S. Supreme Court agreed on Jan. 16 to hear four appeals to state laws that effectively ban same-sex "marriage."

The news had been expected by many legal experts, Church leaders and marriage activists. A recent Sixth Circuit decision, which upheld the constitutionality of state bans in Michigan, Ohio, Kentucky and Tennessee, created a split at the appellate level.

“Because the lower courts are now divided, the Supreme Court’s grant of review is no surprise,” Ed Whelan, a constitutional scholar who blogs at National Review’s Bench Memos, told the Register.

Like many opponents of same-sex "marriage," Whelan fears that the high court could be on the cusp of issuing an historic ruling that could have destructive consequences for American culture and the democratic process.

“As we approach the 42nd anniversary of the court’s lie that the Constitution creates a right to abortion,” said Whelan, “let’s hope that it doesn’t concoct the lie that the Constitution forbids states from defining marriage as a male-female union.”


Archbishop Cordileone

Archbishop Salvatore Cordileone of San Francisco, chairman of the U.S.Conference of Catholic Bishops’ Subcommittee for the Promotion and Defense of Marriage, expressed similar fears in his swift response to the news.

“A decision by the Supreme Court on whether a state may define marriage as the union of one man and one woman may be the most significant court decision since the court’s tragic 1973 Roe v. Wade decision making abortion a constitutional right,” said Archbishop Cordileone in a statement released shortly after the high court agreed to hear the four cases.

Thirty-six states now permit marriage between same-sex couples. But while “marriage equality” activists have celebrated the changing legal environment as further evidence of growing social approval for this practice, Catholic leaders have noted that federal judges, not state legislatures or ballot initiatives, led this revolution.

“It’s hard to imagine how the essential meaning of marriage as between the two sexes, understood in our nation for over 200 years and consistent with every society throughout all of human history, could be declared illegal,” said Archbishop Cordileone.

“To those arguing for a constitutional redefinition of marriage, one must ask: When did the Constitution suddenly mandate a novel and unfounded definition of marriage?

“To ask such a question is not a judgment on anyone. It is a matter of justice and truth. The central issue at stake is: What is marriage? The answer is: a bond which unites a man and a woman to each other and to any children who come from their union. Only a man and a woman can unite their bodies in a way that creates a new human being. Marriage is thus a unique and beautiful reality, which a society respects to its benefit or ignores to its peril.”

Archbishop Cordileone added, “Let us pray that the Supreme Court will be guided by right reason and render a true and just decision upholding the constitutionality of states to respect the institution of marriage as the union of one man and one woman.”


The Legal Landscape

Last October, five states asked the high court to rule on their appeals to lower-court decisions that struck down their laws barring same-sex "marriage." The justices declined to do so, and in a cascading series of decisions at the appellate level, the number of states that permitted the practice quickly jumped from 19 to 36.

In the wake of the justices’ refusal to act on this issue last fall, and following their landmark ruling in the Windsor case, which overturned part of the Defense of Marriage Act that defined marriage as a union of one man and one women, many legal experts now expect the high court will decide that same-sex couples should be able to marry in all 50 states.

In a Jan.16 post on the SCOTUS blog, Lyle Denniston noted that when the court confirmed its intention to hear the four cases, it said “it would rule on the power of the states to ban same-sex marriages and to refuse to recognize such marriages performed in another state.”

“Although the court said explicitly that it was limiting review to the two basic issues,” added Denniston, “along the way, the justices may have to consider what constitutional tests they are going to apply to state bans and what weight to give to policies that states will claim to justify one or the other of the bans.”

Jim Campbell, senior legal counsel with the Alliance Defending Freedom, emphasized that the first question — whether the Constitution requires states to permit same-sex “marriage” — will “hinge nearly entirely, if not entirely, on whether state laws violate the right to equal protection and due process.”

The oral arguments are expected to take place in April, with a decision expected by late June.

"Between now and June 30 or so when the Court rules, there is,  however, much to be done by those who cherish traditional marriage to convince the Court to instead affirm the judgment of the Sixth Circuit, thereby preserving marriage from this grievous assault,and in the process respecting the will of the people,"  Gerard Bradley, a professor at the University of Notre Dame law school, told the Register.


The Broader Debate

Marriage experts like Ryan Anderson have urged the justices to weigh the larger question of the unique purpose of marriage in human history and as a central social institution.

“Equality demands that the law treats things that are the same in the same ways. But a same-sex relationship is not the same as a marriage. No same-sex union can produce a child, nor unite a child with both a mother and a father,” Anderson told the Register.

But in previous oral arguments, such concerns have been given scant attention, with some justices dismissing the need to retain the long-standing connection between the institution of marriage to the procreation and education of children.

“There are two central questions in the broader debate: What is marriage? And who gets to decide?” stated Anderson, in a column posted after the court announced its decision.

“The people and their elected representatives should deliberate and vote about marriage policy — not unelected judges — and they should make policy that serves the common good by reflecting the truth that marriage is the union of a man and a woman.”


Joan Frawley Desmond is the Register’s senior editor.

Nicolas Poussin, “Sts. Peter and John Healing the Lame Man,” 1655 — “I have neither silver nor gold, but what I do have I give you: in the name of Jesus Christ the Nazorean, rise and walk.” ... He leaped up, stood, and walked around, and went into the Temple with them, walking and jumping and praising God.” [Acts 3:6, 8].

No Reason for Being Sad

“For man was made an intelligent and free member of society by God who created him, but even more important, he is called as a son to commune with God and share in his happiness.” (Gaudium et Spes, No. 21)