This Tuesday, April 28th, the Supreme Court of the United States (SCOTUS) will hear oral arguments on the question of whether it is unconstitutional to define marriage as a relationship between a man and a woman.
While the debate over the definition of marriage has been taking place for more than a decade, the Supreme Court could remove the entire debate from the legislative process.
This is what happened in Roe v. Wade when SCOTUS declared a constitutional right to an abortion.
In the same way, Plaintiff’s in the case of Obergefell v. Hodges are asking the Supreme Court to declare that it is unconstitutional to define marriage as a relationship between a man and a woman.
In one sense, the assertion is just silly.
The word “marriage” isn’t mentioned anywhere in the Constitution.
When the Constitution was written, every state defined marriage in this way and federal law has always recognized it as such.
This would be something like declaring the horse and buggy unconstitutional.
You may not like the horse and buggy.
You may think there’s a better way of getting around these days.
You may even want to pass a law to keep horses and buggies off of interstates given the changes in transportation technology (which we have done).
But that’s very different than claiming the horse and buggy was unconstitutional all along, we just hadn’t realized it.
Of course marriage and the family is not a form of transportation subject to technological changes. It is an ecosystem governed by rules that we did not create.
While many on the left would beg us (no, force us) to honor the balance of that fragile ecosystem if it were a salamander, when it is merely a child, we are more inclined to innovate and hope for the best.
So on Tuesday, they will ask the Supreme Court to discover a constitutional right for two men to get “married”.
These days, Constitutional law is a bit like gold mining. Just keep digging and one day, “Well, looky here. It’s a constitutional right.”
Most observers believe there are four solid votes in favor of discovering a new right (Ginsberg, Breyer, Sotomayor, and Kagan) and four votes in favor of allowing marriage to be defined through the legislative process. (Roberts, Scalia, Thomas, and Alito).
That would leave Justice Anthony Kennedy as the deciding vote in the final decision expected to be released in June.
But that is just conjecture. The court has surprised us before. Whatever the outcome, the debate over marriage will not soon be over.
The Supreme Court is powerful, but they do not have the power to reengineer the rules that govern what makes a family strong.
The rules that determine whether individuals, families, and cultures will be strong are not made by us, they were made for us. We will either honor them or suffer the consequences of pretending we are the smartest people who ever lived.
Either way, reality, truth, and marriage (the real kind) will need advocates.