Should the Supreme Court Strike Down Gay Marriage Bans?

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As the Supreme Court considers whether to strike down state bans on same sex marriage, we look at some of the arguments for and against how the court may rule. Ironically, there is a chance that if the Supreme Court strikes down gay marriage bans it could save the definition of marriage.

Argument Against: The Public Should Define Marriage, Not Judges

Chief Justice John Roberts offered the following about having the Supreme Court decide legality of gay marriage: "[The] closing of debate can close minds, and it will have a consequence on how this new institution is accepted.

People feel very differently about something if they have a chance to vote on it than if it's imposed on them by the courts."

This is a very valid point raised by Roberts. Look at how divisive abortion remains decades after Roe vs. Wade after the Supreme Court really stretched the Constitution to effectively legalize the practice. Many states have already legalized same-sex marriage, and many more are headed in that direction. With public opinion changing (see the next argument) shouldn't activists see the benefit of getting the laws change by people, not courts? People accept a change in law more when they get a vote on it rather than have it imposed by the a court.

Argument For: Get it Over With

Poll after poll after poll shows that same-sex marriage ranks dead last, or close to it, on issues that Americans care about. This isn't to say that religious people don't care about marriage being redefined by the government (see the next argument) or that those who want to get married, but can't, don't matter.

It's just to say that it's an issue that has overwhelmed the public discourse when it's something that is, comparatively speaking, not a very important issue to most people. Personally, I'm over it. I'm over the stupid questions where 2016 candidates are asked if they would attend a gay wedding or not.

I'm over the dumb attacks on bakeries. Seriously, just find another bakery. I'm over all of it. I think the reason most people have changed their mind is because they either really don't care or they are really just over it. So perhaps forbidding state bans on same-sex marriage would just save everyone from having to talk about this for the next two decades.

Argument Against: Marriage is a Religious Institution

I've argued that the main conflict over marriage is a creation of a government that has taken what should be a religious practice and made it a law-based practice. Those who oppose gay marriage, view it through a religious lens, not a law one. Those who support gay marriage tend to view marriage as something that is law-based, not religion-based. This is where most of the conflict starts. One group believes marriage is an act of religion, and the other believes it is an act of government. Government intervention into marriage has turned what probably should have remained a church-based institution into a more secular, law-oriented one.

Argument For: There is a Constitutional Right to Marriage

Well, there isn't. It's a state issue. There may be other arguments regarding equality of laws, but marriage itself - gay straight or otherwise - is not a constitutional right.

(Hence some efforts to pass a constitutional amendment on marriage.)  The National Review argues against a supposed constitutional right to marriage:

What ought to matter for the Court, though, is that the Constitution neither commands states to adopt one of these understandings nor forbids them to do it. No legislators who ratified the Fourteenth Amendment understood themselves to be settling policy on this question or to be handing over the authority to settle policy on it to federal judges.

When the Court ruled in 2013 that the federal government could not define marriage as the union of a man and a woman for the purposes of its own programs, Justice Kennedy’s opinion was full of references to the prerogatives of the states. If the Court now rules that states do not have the authority to define marriage as the union of a man and a woman, either, it will be clear that those references were for show, and that the Constitution is the plaything of a willful Court.

It's safe to say there is no constitutional right to marriage at all. Many of the arguments revolve around perceived "fairness" and not what is a constitutional right vs a state's right.

Argument For: Striking Down Ban Could Save Traditional View of Marriage

There could be a favorable outcome to the Supreme Court ending bans on gay marriage when traditional marriage is allowed. Depending on how the court rules, the outcome is not necessarily that states must allow gay marriage, but, perhaps, that states cannot ban gay marriage while allowing opposite-sex marriages to remain. This could lead states to get out of the business of marriage altogether and return the "institution" of marriage back to churches or other groups who may wish to perform equally non-binding marriages. The states can then pass laws that simply treat all people equally, without having to define marriage one way or another.

If the original intent of government involvement in marriage is obsolete anyway, perhaps government intervention in marriage should be obsolete as well. And perhaps the only way that happens is by the Supreme Court ending the ban on same-sex marriages.