“It’s happening, whether you like it or not!” – Lieutenant Governor Gavin Newsom
The big news this week is that the Supreme Court is hearing legal arguments on whether states can ban same-sex marriage. The lawyers have been chosen and a two hour argument has been allocated.
At this point, the legalization of same-sex marriage is a foregone conclusion. The Court is split between 4 liberals and 4 conservatives, with Justice Kennedy serving as the “swing” vote. However, anyone who has been paying attention to same-sex marriage knows that Justice Kennedy wrote the previous Court cases decriminalizing homosexuality and overturning the federal Defense Against Marriage Act. Justice Kennedy wrote in broad, grand, sweeping language, and recognized same-sex marriage on the federal level using every legal theory possible.
Based on precedent, Justice Kennedy would rule against same-sex marriage when hell freezes over.
The Third Path
If the Court ruled in favor of same-sex marriage 5-4, Justice Kennedy would almost certainly write the opinion. If he did, he would probably copy and paste his opinion from the case regarding same-sex marriage on the federal level and give homosexuals broad protection.
If that happens, the only way to overturn Kennedy would be to pass a Constitutional amendment or wait for another Supreme Court to take up a similar case.
For conservatives to avoid the judicial landslide, the conservative Justices on the Court would have to rule in favor of same-sex marriage and make the decision a 9-0. Why? If the Court was unanimous, then the Chief Justice could decide who writes the opinion. Chief Justice Roberts could designate another Justice to write the opinion, like Justice Scalia or Justice Thomas.
The benefit of having a conservative Justice write the opinion legalizing same-sex marriage nationwide would be that the Justice could control what rights are established. Currently, Justice Kennedy and proponents of the LGBT movement are arguing that gays should have the right to marriage. A conservative justice could write that everyone has the right to same-sex marriage.
The difference is that the LGBT approach would create a protected class of persons based on sexual orientation. This protected class could pass laws protecting other rights, like forcing pizza parlors to serve them even if it violates the business owner’s religious rights. If everyone has a right to same-sex marriage though, then no protected classes are created. Instead, same-sex couples could get married, but nothing more. Business owners would still be free to discriminate because the foundation for civil rights of LGBT would not exist.
If the Supreme Court made a unanimous ruling for same-sex marriage, the rights from that case would be as narrow as possible for all nine justices to sign off on it. Although same-sex marriage is guaranteed to happen, the Supreme Court could still shape the outcome so that the conservatives would still have a chance to win a debate.