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Will Supreme Court Impose Gay Marriage on the Country?

March for Marriage 2013

National Organization for Marriage

Mark Stricherz - published on 04/28/15

Too little, too late for traditional marriage advocates?

In a possible sign of popular discontent with the federal courts, thousands of supporters of traditional marriage marched onto Capitol Hill Saturday. According to The Washington Times, social conservative leaders appealed to popular opinion and the well-being of children in their speeches:

“The people of this nation know what marriage is, and we do not want it redefined,” said Brian S. Brown, president of the National Organization for Marriage (NOM), the main sponsor of the March For Marriage.

“Marriage is, and can only be, the union of one man and one woman. This is a beautiful truth,” said Archbishop Joseph E.  Kurtz of Louisville, president of the U.S. Conference of Catholic Bishops. “Redefining marriage in law is the greatest social experiment of our time,” he added. “Children do not need experiments. They need love of their mother and father, where ever possible.”

The thousands-strong crowd included people who came in more than 150 buses, said NOM organizers. Many of the “March For Marriage” signs were in Spanish, as the crowd was diverse in ethnicity and age.

There were very few counter-protests. One man ran through the crowd saying, “You’re all on the wrong side,” and a woman silently carried a sign for marriage equality at the Supreme Court. At least one gay flag was waved at the marchers.

The “March for Marriage” rally was held three days before the Supreme Court was scheduled to hear arguments in four lower-court cases about the legality of state gay-marriage bans; the lead case is Obergefell v. Hodges.  Thirty-one states have approved bans on same-sex marriage. Then the Supreme Court struck down the federal Defense of Marriage Act in Windsor v. The United States in June 2013. In the last 22 months, federal judges have knocked down 24 state bans. Gay marriage is now legal in 37 states.

Recent surveys show that a majority of Americans support gay marriage. With young people more likely to back same-sex nuptials than the elderly and the string of legal victories recently, gay marriage supporters feel they are on the brink of victory. Mainstream media outlets may have concluded that the battle for marriage is over already. Only a Spanish-speaking TV channel covered the March for Marriage Saturday.

So is the battle for traditional marriage over? Not necessarily, Jay Michaelson of The Daily Beast writes. Lawyers for the defense in Obergefell plan to pitch their arguments to Justice Anthony Kennedy, the member of the high court who swings between the conservative and liberal justices on high-profile cases. According to Michaelson, supporters of traditional marriage may be able to convince Justice Kennedy that the states rather than the federal government should decide the debate:

The main reason is federalism. As 
Windsor itself relied upon, marriage has always been the states’ business, not that of the federal government. In a way, 
Obergefell would be the anti-
Windsor, holding that a federal marriage right trumps the will of the states to define marriage as they see fit.

There is precedent for this, of course. 
Loving v. Virginia, the 1967 case that invalidated miscegenation laws (laws banning mixed-race marriage) found exactly that: a federal marriage right trumped the will of the states to define marriage as they saw fit. But that was about race, and a half-century of Supreme Court jurisprudence has shown that when it comes to constitutional law, race is different.

The states defending their marriage bans also pitch specific arguments to Justice Kennedy. They point out that a robust debate is taking place on this issue across America, and that a Supreme Court ruling would shut it down. They say that this really is a matter of state sovereignty. These are values Justice Kennedy has espoused in other contexts.

Michaelson may have a point. Federal judges have been the chief drivers for the legalization of gay marriage.
Only 11 states have approved same-sex marriage as the result of the state legislature or state popular initiative. In the other 26 state where gay marriage is legal, the federal courts intervened. 

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