Today SCOTUS heard oral arguments regarding same-sex marriage. No matter how the decision eventually comes down, the highest court authorized by the Constitution is more or less contemplating the lesser of two evils. With a decision to declare same-sex marriage a constitutional right throughout the 50 states, the court would be making many terrible and serious mistakes, many of which are outlined here. Any attempt by me to summarize those mistakes, or their severity, would be futile, so I will simply allow you the reader to follow the previously provided link and judge that content for yourself. So that’s one of the potential evils – a nationally mandated right to same-sex marriage handed down by 9 lawyers in black robes.
But wouldn’t the other potential decision from the high court be a good thing? Maybe not. Let’s think about it: let’s pretend SCOTUS hands down its decision, and in it they decree there is no right to same-sex marriage found in the US Constitution. That opinion, on its face, will probably be heralded by so-called conservatives as a landmark victory, a surprising change in the tides, and the only correct choice. But it wouldn’t sit very well with me.
Now it’s not the potential for that decision in and of itself that gives me pause. No, what has me disappointed to my core (but not at all shocked) is that during the Justices’ oral arguments today – during which the Justices grilled the Solicitor General about marriage precedence, the history of the institution, practical problems with a redefinition, and more – a whopping NONE of them brought up the simple yet essential argument that is central to our union’s founding and political philosophy: the 10th amendment. “What do you mean the 10th amendment, Mike? What the heck are you talking about?” Let me explain.
The 10th amendment states, quite simply, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In layman’s terms, that means that if the States in their sovereign capacity haven’t delegated a particular power or duty to the United States, AND if the Constitution hasn’t prohibited that particular power, that that particular power remains properly vested with the States, or the people. The particular power in question today is the power to define marriage. Using the metric defined by the 10th amendment, that power is neither delegated to the United States, nor prohibited to the States by the Constitution. Therefore, the power to define marriage is properly vested in the States, or the people. End of story. SCOTUS shouldn’t even be involved.
The horrifying regularity with which SCOTUS fails to acknowledge this most basic and integral portion of our union’s special form of government is nothing short of depressing. In this case, SCOTUS’ sickeningly predictable failure would represent the latter portion of this lose-lose scenario. For if the high court’s decision is ultimately revealed to deny a federally mandated right to same-sex marriage, its reasoning will be based on deleterious rationale. Rather than properly relying on the Constitution and its 10th amendment (i.e. effectively refusing to say anything substantive on the matter because the 10th amendment segregates the power to define marriage within the States), such a ruling would rely on and further solidify the court’s continuing power grab into areas of control previously left to the States. So even if self-proclaimed conservatives get the “ruling they want,” they’ll get the rationale they’ll hate in the near future. Mark my words.
Good try, SCOTUS. Maybe next time you’ll hit one out of the park. For now, I’m scoring this one as a swing and a miss.