The U.S. Supreme Court appears likely to provide defenders of the traditional definition of marriage with no more than a partial victory, a legal expert says.
After sitting in on the landmark arguments March 26 and 27, Family Research Council lawyer Ken Klukowski said he is “fairly optimistic” the justices will support the right of states to continue to define marriage. The federal government’s authority to define marriage, however, is an “uphill battle” at the high court, he said.
Associate Justice Anthony Kennedy will be the swing vote in both debates over the constitutionality of government definitions of marriage, Klukow-ski predicted.
The Supreme Court heard arguments March 26 on a challenge to Proposition 8, a 2008 California voter initiative that defined marriage as only between a man and a woman. On March 27, the justices considered the 1996 Defense of Marriage Act, which used the same definition for federal purposes.
Regarding Prop 8 and the possibility of a sweeping decision by the justices for nationwide gay marriage, Klukowski said he is “fairly optimistic that the court is going to correctly say that there is no invisible, previously unnoticed federal constitutional right to gay marriage whereby the people of the 50 states cannot vote on the issue.”
If the justices come to that conclusion, Prop 8 will stand, and similar decisions by states will as well.
“Everyone acknowledges marriage doesn’t show up once in the Constitution,” Klukowski told Baptist Press. “The only question is whether it’s an implied right that does not allow any of the 50 states to have any laws saying marriage is one man and one woman, that gay marriage is a federal right that all states must embrace and must do so now. It did not look like to me that there were five votes for that at the Supreme Court.”
In the Prop 8 case, “what will weigh more heavily on” Kennedy is his belief “this is an issue better left to the democratic process and that the federal Constitution does not include any empowerment to authorize unelected federal judges to shut down democracy on this issue and just declare a national, constitutional right,” said Klukowski, director of FRC’s Center for Religious Liberty.
In the arguments over DOMA, however, Kennedy seemed drawn to the view that a federal definition of marriage would interfere with the sovereignty of the states, Klukowski said. There are more than 1,100 federal provisions based on the traditional definition of marriage, including employee, Social Security and tax benefits.
During the DOMA back-and-forth, Kennedy “appeared to be only talking about federalism as a one-way street, not a two-way street,” Klukowski said. Federalism is essentially the division of power between different levels of government.
However the states define marriage, Kennedy appeared to signal that the “federal government must cater to the states to provide benefit to whoever the state tells them is married, that the federal government cannot have its own separate definition,” said the FRC lawyer, whose organization filed friend-of-the-court briefs in support of both Prop 8 and DOMA. “So that is the issue [the decision] will stand or fall on.”
The odds are “not strongly against” a favorable ruling on DOMA, Klukowski told BP, “but I think it’s an uphill climb” for DOMA to “survive on the merits.”
While he predicted Kennedy will be the swing vote either way in 5-4 votes in both rulings on constitutionality, Chief Justice John Roberts will be the deciding vote on the procedural issues in both cases, Klukowski forecast.
The justices could refuse to rule on constitutional grounds in both cases by deciding they should not be before the high court.
The court is expected to issue rulings in both cases in June.
– Strode is Washington bureau chief for Baptist Press.