- - Tuesday, September 23, 2014

ANALYSIS/OPINION:

The first Monday in October draws nigh, which means Supreme Court clerks are lining up cases for the upcoming term. At the top of the agenda will be, or should be, what to do about flighty federal judges in a dither to nullify properly established marriage laws throughout the country.

Marriage was a matter left to the states until the judges went on a tear 15 months ago in response to the Supreme Court ruling in U.S. v. Windsor that the federal Defense of Marriage Act couldn’t be used to deny federal benefits to a homosexual couple who said their vows in a state that recognizes such unions.

It’s widely expected that the high court will weigh in if only to clean up the mess it made last year. Written by Justice Anthony M. Kennedy, who sometimes swings one way, sometimes the other and sometimes hardly at all, the Windsor ruling never decisively settled the larger question of whether states could enact laws or approve constitutional amendments specifying marriage as between one man and one woman. “The significance of state responsibilities for the definition of marriage dates to the nation’s beginning,” Justice Kennedy wrote, and is “central to state domestic relations laws.”

Liberal federal district and appellate judges took this vague and narrow ruling as an opening for a much broader scheme. The Windsor case became an “equal protection” pretext in tossing aside the collective judgment of the legislatures and the people in the various states.

Rulings striking traditional marriage laws from Virginia to Oklahoma to Utah were put on hold while the states appeal them. One of these appeals is before the 6th Circuit Court of Appeals, and Justice Ruth Bader Ginsburg signaled that the way the appellate court rules will play a role in determining whether the high court puts the issue on its 2014-15 docket.

Justice Ginsburg, a Clinton appointee and onetime lawyer for the ACLU, told an audience in Minnesota last week that “there will be some urgency” for the high court to step in sooner if the 6th Circuit allows homosexual marriage bans in Kentucky, Michigan, Ohio and Tennessee to stand. If the appeals panel follows the lead of most of the other courts in overturning traditional marriage laws, there would be “no need for us to rush.”

Justice Ginsburg and Justice Elena Kagan have officiated at same-sex nuptials, so their views are well known. But Justices Ginsburg and Kagan stepped over an important line to prejudge the issue. They applied a little not-so-subtle pressure on their colleagues. That’s not what a legal “umpire” — to use Chief Justice John Roberts’ formulation — would do. Justice Ginsburg in particular is not calling balls and strikes, but rooting for her team.

No matter how the 6th Circuit rules, the Supreme Court should take up the issue without delay. State marriage laws shouldn’t be allowed to remain in legal limbo. The high court’s tough decisions are usually decided by Justice Kennedy’s swing vote. He seems to have given a hint.

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