The court has decided

US-JUSTICE-GAY-MARRIAGEThe Supreme Court rulings on gay marriage will not end the arguments. Their net result is to remit the arguments to the states. Same sex marriage will continue to be recognized in New York and not in the majority of other states.

One of the rulings affects only federal law. The federal government cannot, it seems, step into this area, which has traditionally been the province of the states, and impose its own definition. For the purposes of the federal death tax (and presumably for social security payments), the federal government must, for New York residents, respect the law of New York. 

The other ruling affects only California. The Court had several options available to it. It could have found a general right to same sex marriage. It could have found that states such as California, which grant all the rights of marriage in the form of civil unions, have no business withholding the word ‘marriage’. It could have overturned the ruling by the Ninth Circuit. But it did none of these things. It refused to hear the case. Its reasons were technical, and concerning, and will be addressed below, but let us continue with gay marriage.

States may continue to develop their own policies, and will no doubt do so. An idea which was widely unpopular only ten years ago, rejected even in liberal states such as Washington and California (twice) now commands majority support nationwide. It is a slim margin, and many states, no doubt, lean the other way. But the biggest division is by age. Young people favor gay marriage and older people oppose it. 

This is not an issue – like drugs or taxes – on which people are likely to change their minds as they age. People born in the 1980s will continue to favor gay marriage fifty years from now when people born in the 1940s will no longer be part of the electorate. Seniors, largely unfamiliar with gay people, may soften their views as they attend gay weddings for their grandchildren. 

The Republican Party would be wise to soft pedal the issue. It does not condemn them to lose elections. The Democrats, after all, carried states like Michigan and Washington in 2004 on the same day that those states rejected gay marriage. There are still some states where rallying against gay marriage will help conservative candidates, but it will not be a net vote winner nationwide. If there are to be more statewide initiatives, it would be tactically wise to hold them in off-years not, as in 2004, time them for a presidential election.

SCOTUS rejected the California case on standing grounds. The Governor refused to defend a law passed by initiative and the Court rejected the standing of private citizens to defend it. This is a worry. The executive branch, properly, has no veto over legislation by initiative, and vetoes over a legislature can be overridden. But if an executive can effectively block a law merely by declining to defend it any time someone can construct a half-way decent case against it, then governors across the country have just acquired a significant new power. This is a power which executives have acquired not relative to the judiciary nor even (mostly) the legislature. It is a new power over the people, and that is a most certainly to be regretted.

Quentin Langley is a Senior Lecturer in Marketing at the University of Bedfordshire Business School as well as a freelance columnist published in the UK and all parts of the US. He blogs on social media and crisis communications at brandjacknews.com

 

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