SCOTUS got this wrong on several levels
The Supreme Court got this one wrong on several levels.
First, no where in the federal constitution do the States delegate to the federal government any power to regulate or define marriage at all. Under the 10th amendment then, marriage is a power reserved to the States and/or the People. The federal courts had no business even taking these cases, much less deciding that the Civil War era 14th amendment dealing with racial equality was actually intended to require all the States to redefine marriage to include homosexual coupling.
Secondly, this decision flies in the face of the precedence set just last year in Windsor in which the SCOTUS over-turned the federal DOMA on the basis that marriage is the purview of the States and the feds have little choice but to go along with whatever definition the States set.
The decision also flies in the face of precedence and history going back 100+ years when Utah and other territories settled by Mormons were denied admission as States until such a time as they disavowed polygamy. Back in the late 1890s the feds still understood some semblance of proper State powers and that once admitted as a State, the State and not congress would get to set marriage laws. Utah was required to adopt a special section of our State constitution that cannot be changed without the consent of Congress. This
so-called "Ordinance" section" requires "Perfect toleration of religious sentiment is guaranteed" but simultaneously forever bans polygamy. (It also requires the State to provide free, non-religious schools. The tax burden to support those schools made maintenance of a separate, religious school system all but impossible and so reduced the influence of the Mormon Church.)
While Lawrence and Windsor were, arguably, appropriate applications of the federal Constitution to protect individual liberty and States' ability to define marriage for themselves, respectively, this case is bad law constitutionally, and increases the power of the federal government.
Additionally, history suggests this is a pyrrhic victory. I have frequently commented on the enviable progress homosexuals have made over the last 40 years in increasing social acceptance. But I think they've made a mistake on pushing for federal court action. Forty years ago the SCOTUS short circuited the evolving social and legislative debates on elective abortion and nationalized the legality of purely elective abortions. Today, we are still fighting that social battle. Every presidential election, every appointment to the federal benches and especially to SCOTUS devolve into trying to discern whether the next Justice will uphold or overturn Roe.
I don't think it a stretch to suggest that supporters of legal marriage recognition and benefits for homosexual relationships now find themselves in the same situation as supporters of elective abortion. As painful as it may be to wait to gain legal recognition of what one sincerely believes is a right, actually winning through the political process would have brought real and permanent victory. As is, what the courts grant, they can take away. That kind of uncertainty is a poor way to have to live.
With recent pro-gun decisions (Heller, McDonald, etc) the court has clearly followed public sentiment as evidenced by the huge growth in shall issue laws, the number of persons with permits, even the growing OC movement, as well as the increasing market of and for self-defense firearms, holsters, and other accessories.
Similarly, Loving followed the clear racial intent of the 14th amendment and was, if not behind, at least not much in front of public sentiment. At the time of the decision, only a minority of States, ~15, still had anti-miscegenation laws on the books, with some 35 permitting inter-racial marriage. Not to mention that the anti-miscegenation laws in the US were a historical anomaly. Inter-racial and inter-tribal marriage has been common throughout history partly for the purpose of building alliances. Note the inter-relations of the royal families of Scotland, England several European nations. Yes, at the time those royal marriages took place, English, Scots, and Irish were considered different "races" by most of society.
In contrast, some 40 States have constitutional provisions or statutes defining marriage as a man and a woman. That includes ultra-liberal California that adopted their Prop 8 Constitutional Amendment in the same election that made Obama POTUS.
Not to mention that this decision will greatly increase the number of landlords, employers, and shopkeepers who will be legally compelled to engage in unwanted associations.
Of course, none of this has much to do with RKBA or OC (except perhaps as we might learn from the success of the homosexual lobby, and as we might push for inclusion of gun carriers in anti-discrimination laws), and as can be seen from many comments, such a topic is naturally going to be highly divisive, cutting to the core of some of the most deeply held beliefs on both sides.
Whether the States should provide benefits to married persons, what relationships States should recognize as marriages, etc, are all interesting side debates. But from a federal constitutional perspective, this is a bad ruling from the SCOTUS, even if one is pleased with the immediate outcome.
Charles
