Two Things the Supreme Court Can’t Say

With oral arguments before the U.S. Supreme Court on the constitutionality of Tennessee’s marriage law less than three weeks away, two recent events should make clear to the Justices two things that for sure they cannot say.

Indiana and the Suspect Class

The first event that the Justices should take note of is the lightning speed at which Indiana’s political leaders did an about-face last week on religious liberty legislation in response to threats of a statewide economic boycott by those who believe sexual acts and gender expression are civil rights.

The reason the Justices should take note of this is that one of the arguments made by proponents of same-sex “marriage” is that laws “limiting” marriage to a man and a woman are unconstitutional, because they are designed to target and withhold political rights and privileges—marriage and its benefits—from a “suspect class” of people, namely, homosexuals.

While it is hard to fathom that anyone would seriously believe that marriage laws, which have existed for hundreds of years, were created to exclude homosexuals from anything, the Supreme Court’s “test” for determining a suspect class makes this argument almost comical.

As the Sixth Circuit Court of Appeals noted in upholding Tennessee’s marriage laws, the Supreme Court has considered “four rough factors in deciding whether to treat a legislative classification as suspect” and legislation negatively affecting the class “presumptively unconstitutional.” One of those factors is whether the asserted class is “politically powerless.”

If the situation in Indiana did nothing else, it proved to the world that those who advocate for the rights of homosexuals are not politically powerless. For the Supreme Court to hold that homosexuals deserve special protection as a suspect class because they are politically powerless would destroy the credibility of the Court.

America Is Ready for Same-Sex ‘Marriage’

A couple of months ago, legal scholars and conservative political commentators were shocked when Justice Ginsburg said that she thought Americans were prepared to accept same-sex “marriage” and that “it would not take a large adjustment” for Americans if the Court ordered same-sex “marriage.”

While Justice Ginsburg apparently does not have the integrity to recuse herself from a decision in which she has expressed her pre-judgment of the case, the second event of which she, along with her fellow Justices, should take note is that twenty-four of the fifty states have just filed briefs with the Court in support of their state’s right to define marriage. That means that some states that have court-imposed same-sex “marriage” are actually fighting for their right as sovereign states to decide their own marriage laws.

Constitutional rights should not float along on the breeze of whatever public opinion might from time to time think about some issue, but, sadly, some Justices on the Court, like Ginsburg, believe that this “breeze” is the breath that makes the Constitution a “living document.” Unfortunately for them, the briefs of these twenty-four states should add an odor to the air she and those on the Court who think like her have been breathing that should make repugnant a belief that America on the whole is ready to adjust to same-sex “marriage.”

While the Justices may well find some constitutional justification for subordinating the sovereignty of the fifty states to their views on homosexuality and marriage, we at least know two justifications that should now be off the table.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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