Same-Sex Marriage And The Anticipated Supreme Court Ruling

It is anticipated that, either today or next Monday, the United States Supreme Court will hand down its decision as to the constitutionality (or not) of state laws and constitutional provisions defining marriage as between one man and one woman. Inter alia, the Court will decide whether forbidding same-sex marriage violates the Equal Protection clause of the federal Constitution. It is well beyond me to predict what the Court will do and, equally important, the analytic paradigm they will employ. To quote Samuel Meyer, "I never make predictions, especially about the future."

That said, if the Supreme Court does find there to be a constitutional right to same-sex marriage, in so doing striking down laws such as that in Kentucky which by constitutional amendment define marriage is between one man and one woman, many persons, particularly on religious grounds, are going to object. I submit it is important are those with religious objections to same-sex marriage to appreciate that the question considered by the Supreme Court is the underlying constitutionalissues and principles at play. These differing paradigms were considered and addressed by the late Judge Heyburn in his decision striking down Kentucky's same-sex marriage ban, namely Bourke v. Beshear, 996 F.Supp.2d 542 (W.D. Ky. 2014):

For many, a case involving these issues prompts some sincere questions and concerns. After all, recognizing same-sex marriage clashes with many accepted norms in Kentucky—both in society and faith. To the extent courts clash with what likely remains that majority opinion here, they risk some of the public's acceptance. For these reasons, the Court feels a special obligation to answer some of those concerns.

Many Kentuckians believe in "traditional marriage." Many believe what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society's benefit. They may be confused—even angry—when a decision such as this one seems to call into question that view. These concerns are understandable and deserve an answer.

Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation...