On Monday, a federal district judge struck down Oregon’s ban on same-sex marriage. A few states away, another federal judge ruled that Utah had to recognize over a thousand same-sex marriages that were certified before the Supreme Court halted the marriages. The next day, Pennsylvania followed Oregon and Utah in recognizing same-sex marriage. If the rulings stand, Oregon and Pennsylvania would be the 18th and 19th states to recognize same-sex marriages.
1) The Possible Influence of Rogue Attorney Generals on Medical Marijuana, Immigration Reform, Etc.
Courts have played a strong role in the legalization of same-sex marriages, but that’s to be expected. Minorities often look to courts when defending their constitutional rights and courts have successfully championed minority rights in cases like Brown v. Board.
The government officials who are overstepping their role in same-sex marriage are not judges, but government lawyers. Oregon Attorney General Ellen Rosenblum and former California Attorney General Jerry Brown refused to defend their state’s marriage bans. During the DOMA case, federal Attorney General Eric Holder submitted a brief to the Supreme Court stating he agreed with same-sex couples who wanted DOMA overturned.
Same-sex marriage has created a world where voters and lawmakers are shut out of the courtroom by executive officials. The government attorneys who are suppose to defend the laws are refusing to do their jobs. As a result, California’s same-sex marriage ban was not heard by the Supreme Court and DOMA was overturned without any real opposition. Although the attorney generals may believe they are defending the Constitution, that’s for judges to decide.
If government lawyers refuse to defend the laws in court, no one else can defend the laws. This might be acceptable to liberals in same-sex marriage, but what about medical marijuana? What happens if government lawyers refuse to defend employee discrimination laws or immigration reform? Government lawyers who don’t do their jobs prevent judges from hearing both sides of a case. Although the government might lose anyway, the people who wanted those laws passed have a right to have their views represented.
2) How the Emphasis on Group Identity Could Affect Polygamy
Same-sex marriage is following the footsteps of the Civil Rights Movement. The arguments have focused on a group (race and sexual orientation) that has been treated differently by the government and the group seeks protection of the laws.
Over the next few years, Republican Christians will push for a group identity of their own. Opposition to same-sex marriage and Obamacare already focuses on how conservative Christians are being deprived of their rights. Although the religious arguments focus on free speech and exercise of religion right now, the success of same-sex marriage may cause Republican Christians to shift towards a more group focused argument. Of course, Christianity by itself cannot be protected like that, so religious employers in general may find themselves with stronger legal rights than before.
One interesting offshoot of the tension between sexual orientation and religion will be polygamy. Fundamentalist Mormons can draw on arguments from both same-sex marriage and religion to decriminalize polygamy. Politically, we may soon see religious conservatives and same-sex rights advocates work together to stop a possible push for polygamy.