Pessimism about Marriage and the Supreme Court

The Supreme Court has now agreed to decide one of the marriage redefinition cases. The oral argument will be held at the end of April, and a decision will come down at the end of June.

In my opinion, this is not good news. The conventional wisdom is that the Court takes cases in order to reverse lower courts, and the statistics bear that out (in revious terms, they’ve reversed about 75% of the cases they take). So it’s very significant that the Court took the case from the Sixth Circuit — the only Circuit Court to have upheld real marriage.

We also have to bear in mind that in the Windsor case, the majority of the Court struck down the federal Defense of Marriage Act, on the theory that it violated Equal Protection because the law was enacted specifically with “animus” towards homosexuals. In the case the Court just accepted, each of the state laws involved (Ohio, Michigan, Kentucky, and Tennessee) would be vulnerable to that same argument, since they adopted constitutional amendments specifically to rule out the redefinition of marriage to include same-sex couples.

So I think there’s every reason to anticipate that the Court will rule the wrong way. It’s clear that there is a solid 4-vote bloc that will vote to recognize same-sex “marriage” (Sotomayor, Kagen, Breyer, and Ginsberg), and a 4-vote bloc that will likely vote against it (Alito, Scalia, Thomas, and probably Roberts). Given Justice Kennedy’s past record on homosexual rights cases — he has always voted in favor of them and has written some terrible majority opinions centered on the issue of alleged “animus” (see the Lawrence, Romer, and Windsor cases) — it seems virtually certain that he will follow his own reasoning in his Windsor majority opinion, and rule that the secret messages, written in invisible ink but that¬†he manages to discern in the Constitution, somehow require the recognition of same-sex “marriage”.

In other words, the Court will likely decide that the Equal Protection Clause requires that we must abandon logic, and say that inherently different things are actually the same.  Welcome to the Humpty-Dumpty world of justice, where words mean whatever the people in power wish them to mean.

I am innately pessimistic about Court rulings, but I just can’t see any path to a good outcome here. Not only will a marriage re-definition ruling flout the will of the people as expressed in the democratic process, it will contradict the fundamental truths about marriage contained in the natural law and in the nature of the human person. It will also increase pressure on religious people to conform, and will test our ability to live in keeping with our faith in an increasingly hostile nation.

 

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