High Court Unlikely to Settle Gay Marriage Issue, Experts Say

Pete Winn | Senior Staff Writer | Tuesday, May 27, 2008

High Court Unlikely to Settle Gay Marriage Issue, Experts Say

(CNSNews.com) - Last week's decision by the California Supreme Court establishing homosexual marriage there has raised a number of questions, one of them being whether the U.S. Supreme Court will eventually take up the issue. Some of the nation's top legal experts disagree in their answers.

Brigham Young University law professor Lynn Wardle told Cybercast News Service that the homosexual marriage issue is unlikely to go directly before the nine justices of the High Court.

"The Supreme Court of the United States does not have the authority to reverse or review an interpretation of the California constitution - that is not the business of the U.S. Supreme Court," Wardle said.

"It is possible, if the decision of the California Supreme Court violated some provision of the U.S. Constitution, that the U.S. Supreme Court could take it up," he added. "For instance, if they had said, 'Black gay couples could get married, but not White gay couples.' Or if they said, 'Protestant lesbians can marry, but not Catholic lesbians.' That would clearly violate a provision of the U.S. Constitution, as the supreme law of the land."

But there is no provision in the U.S. Constitution that guarantees and protects marriage, Wardle pointed out.

"That is one reason why there is a movement to get a federal marriage amendment," he said. "Some people think there should be that kind of a provision to protect one of the basic institutions of society. And there are provisions like that in many national constitutions. But the U.S. Constitution doesn't have that kind of provision --at the time ours was written, it simply wasn't an issue."

New York Law School professor Albert Leonard, editor of Lesbian/Gay Law Notes , meanwhile, told Cybercast News Service that marriage is almost always regarded as a question of state law, and the Supreme Court is unlikely to pass judgment on the California's court's decision.

But Leonard does see a way that the Supreme Court might end up getting involved - one centering on the proposed voter initiative that groups are trying to get qualified for the ballot this November.

"If the secretary of state out there in California certifies the initiative that has been submitted to amend the state constitution, and it goes on the ballot in November and it passes, it could be challenged as a violation of the federal constitution," Leonard said.

"It could be claimed that it violates the 14th Amendment rights to due process and equal protection. They could say that it is inconsistent with Loving vs. Virginia, the (U.S Supreme Court decision) which struck down bans on interracial marriage, and it is inconsistent with Romer vs. Evans , the 1996 case that struck down the Colorado anti-gay constitutional amendment."

But even if the Supreme Court did decide to take on the same-sex issue, Leonard said that wouldn't automatically mean that the Court would find a California amendment unconstitutional, or that same-sex couples were entitled to marry anywhere in the United States.

Leonard added that he thinks those pushing for an initiative in California are "gambling."

"They are putting a lot of chips upon the table," he said, "because they might win a vote overruling the California court's decision from last week, but they might place the issue in play before the Supreme Court for the whole country, and it's a roll of the dice how it will turn out."

Attorneys for the Alliance Defense Fund filed a petition Thursday with the California Supreme Court.

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