The U.S. Supreme Court has announced it will hear arguments next year on two critical cases related to the definition of marriage, but one well-known advocate of traditional marriage is not at all confident that the Court will uphold it as a union of one man and one woman.
One case stems from California, where a federal court struck down a 2008 state constitutional amendment defining marriage as the union of one man and one woman. Also under consideration by the justices will be the constitutionality of the 1996 Defense of Marriage Act, which defines marriage in the traditional manner for the purpose of government functions. The act also allows the individual states to determine their own individual definitions for marriage.
Both these cases will come before the Supreme Court in the spring, and a decision will likely come down in June. Liberty Counsel Chairman Mathew Staver told WND this development brings good news and bad news.
"I'm pleased that California's not going to have same-sex marriage," said Staver, noting that the Supreme Court's refusal to hear the Prop. 8 case would have enshrined homosexual marriage as the law in the Golden State. "On the other hand, I'm never comfortable with the Supreme Court on issues such as this because you never know what they will do. We saw this with Obamacare. Of course, going back 40 years roughly, we saw this in 1973 with abortion. If they were following the rule of law and the Constitution, no question it's a no-brainer.
"The Constitution clearly does not sanction same-sex marriage nor does it prohibit a state from passing a constitutional amendment like California did that affirms the definition of marriage. But this is the Supreme Court, and these are justices that don't necessarily find themselves adhering to the rule of law – at least some of them – and consequently, you have to have a bit of concern when you go up to the high court on this issue."
Staver said it's very possible, and maybe even likely, that the Court will look for a way around issuing some landmark ruling and instead come to a much smaller verdict that questions whether the U.S. House of Representatives has standing to pursue its appeal of the rulings on the Defense of Marriage Act or whether supporters of Proposition 8 are in a position to properly take their case to the Supreme Court. If either or both appeals by traditional-marriage backers are denied based on standing, the justices may never even get to the merits of the cases. Staver said that would lead to a rather confusing situation.
"That would leave in California only the district court decision, which is for the northern district of California," Staver said. "So only the northern part of California would be under this ruling. The central and southern part of California would not, and it certainly would not go across the borders of California."
Similarly in the Defense of Marriage case, Staver said rejecting the appeal on standing would limit the ruling to the southern parts of New York.
"That would make an odd situation, but it would certainly limit the impact of this decision," he said.
Politics have favored traditional marriage forces until very recently. Backers of man-woman marriage succeeded in the first 32 states where this battle was fought. On Nov. 6, however, voters in three states ratified state laws legalizing homosexual marriage, and a fourth state rejected a traditional marriage amendment. Staver said popular sentiment should have no impact on the deliberations of the justices, but he's not holding his breath.
"Some of these justices, no doubt, may ultimately put their finger up in the air. If they did, they would see that the vast majority of states have passed constitutional marriage amendments," he said. "When you add that to the statutory amendments, you've got over 40 states that have passed these amendments. Clearly if you're weighing them in the balance, the majority of states ultimately win, not what we just saw in November."
If the Supreme Court does end up issuing a far-reaching decision, Staver is not optimistic given the current complexion of the Court with four reliably liberal justices and moderate Justice Anthony Kennedy, who authored the majority opinion in the 2003 Lawrence v. Texas case that struck down anti-sodomy laws and opened the door to the homosexual marriage movement.
"I'm not real excited about taking this up there and having the very essence of our society, the first form of government, marriage, decided by one swing vote," Staver said. "That's concerning to me and it should be concerning to everybody."