In the gay marriage case before the Supreme Court, there are two questions: Does the Fourteenth Amendment require states to expand their definition of marriage to include two people of the same sex? Does it require a state to recognize a marriage between same-sex couples when they were lawfully married in another state?
After listening to the oral arguments, it will be a 5 to 4 decision, with Justice Kennedy the swing vote. I wouldn’t bet my life, but I think Kennedy will vote there is no Fourteenth Amendment violation, and the states have the right to define what a marriage is and is not in their state.
My reasoning is simple. Let’s say the Court rules same-sex couples can get married because of the Fourteenth Amendment and its Equal Protections Clause.
What legal principle in the amendment would suddenly shut off and prohibit three women from marrying or a man and two woman? The fact the Court would then be in the game of picking the place to turn off that right over the next 10 years or so, indicates this is not a rights issue — rights are either there or not. But rather defining marriage is an arbitrary decision, hence reserved for the states and the people.
Justice Alito said, suppose we rule in your favor (for the gay couple) and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any grounds for denying them a license?
Next I don’t think the Court sees it as its decision to change the definition of marriage in the face of history.
Justice Kennedy said one of the problems is when you think about these cases, the word that keeps coming back to me is millennia. First of all, there has not really been time for the Federal system to engage in this debate or the separate states… but only 10 years.
I don’t even know how to count the decimals when we talk about millennia. And it’s very difficult for the Court to say, oh, well, we know better.
Alex Saitta
Pickens