- The Washington Times - Sunday, March 10, 2013

The issue of gay marriage is hurtling toward a Supreme Court date this month, and activists on both sides are fearing — or hoping for — another Roe v. Wade-type decision.

The 1973 Roe decision — which the justices hoped would settle the legal question on abortion once and for all — instead spawned a political and cultural clash that is still raging. Many traditional-values advocates are predicting a similar divisive scenario if the high court overrides laws approved by legislatures and voters in dozens of states defining marriage as the union of a man and a woman.

If the Supreme Court “mandates genderless marriage, the resulting social divisions and political contentions will probably equal — and may surpass — those resulting from Roe v. Wade,” Nevada lawyer Monte Stewart and the Coalition for Marriage said in a friend-of-the-court brief in support of California’s voter-approved Proposition 8 and the federal Defense of Marriage Act (DOMA), both of which take a stand against same-sex marriage.

“It is not an exaggeration to call the [Proposition 8 case] Hollingsworth v. Perry the ‘Roe v. Wade for marriage,’” said Ron Prentice, chief executive of the California Family Council.

The similarity seen between the 1973 abortion decision and the two marriage cases lies in how a broad decision declaring a fundamental right has potential impacts for state marriage laws and, in some cases, constitutional provisions. A court declaration of a general right to marry a person of one’s own sex, as it did in the case of abortion, also would freeze political debate.

When Roe declared abortion a right, it struck down any state laws that conflicted with that ruling, said Peter Sprigg, senior fellow for policy studies at the Family Research Council. With same-sex marriage, that means nullifying or overriding overnight statutes in 41 states to limit marriage to the union of one man and one woman.

If the Supreme Court rules that those kinds of man-woman marriage laws violate the U.S. Constitution, then the effect “would be to change the definition of marriage for all 50 states, and impose same-sex marriage on all 50 states,” said Mr. Sprigg. “That’s why these cases are like the Roe v. Wade of same-sex marriage.”

Shutting off debate

Also, when the high court issued the Roe decision, it “shut that [abortion] debate off, and locked in the country when it was at its greatest loggerheads — and we have remained at that locked-in position ever since,” said John C. Eastman, chairman of the board of the National Organization for Marriage, which supports one-man, one-woman marriage laws.

A similar situation has arisen with same-sex marriage: Polls suggest that voters and elected officials are wrestling with the issue, with most states keeping the historical definition of marriage. A few — including Maryland, New York and Washington state — have legalized gay marriage, Mr. Eastman noted.

But if the Supreme Court shuts off that gay-marriage debate, “you will have created the same kind of strife and controversy, locking in the people to the positions that they have now,” said Mr. Eastman, who is also a law professor and founder of the Center for Constitutional Jurisprudence at the Claremont Institute.

Nineteen state attorneys general echoed Mr. Eastman when they urged the high court not to “stultify democratic principles by declaring a winner of the marriage debate.”

A leading gay-rights lawyer also sees sweeping changes if the Supreme Court allows “heightened scrutiny” of laws that affect homosexuals in legal battles. Such scrutiny would force government officials to justify any statute that treats gays differently from the general population.

“Normally, one of the first things you do when you’re reviewing a case on constitutional grounds is you decide the standard of review,” said Mary Bonauto, civil rights project director at Gays and Lesbians Advocates and Defenders.

If the high court decides that laws that single out gays and lesbians require a higher standard of review, “then, obviously, it has profound reverberations,” Ms. Bonauto said at a recent Respect for Marriage Coalition event.

Minority rights?

Lawyers Theodore Olson and David Boies, who represent the American Foundation for Equal Rights, an advocacy group for same-sex marriage, said the high court should not find California’s Proposition 8 constitutional simply “because it was enacted through the democratic process and therefore reflects ‘the will of the people.’”

“Needless to say,” the other side “has it backwards,” they said in their Supreme Court brief. Case law shows that courts must protect minorities “from majoritarian prejudice or indifference,” even when such court actions “upset the majority.”

Elected officials on both sides of the debate have filed briefs with the Supreme Court over the California and federal cases.

In one case, 212 congressional Democrats issued a brief asking the high court to overturn DOMA.

“There simply is no legitimate federal interest in denying married same-sex couples the legal security, rights and responsibilities that the federal law provides to all other married couples,” said the lawmakers, who included Senate Majority Leader Harry Reid, Nevada Democrat, and House Minority Leader Nancy Pelosi, California Democrat.

That brief was filed after the Obama administration weighed in with a brief calling on the high court to strike down California’s Proposition 8, although the U.S. brief stopped short of asking the court to invalidate all state statutes defining marriage as the union of a man and a woman.

The Obama administration has announced that it would stop enforcing the Defense of Marriage Act because of doubts about its constitutionality, and congressional Republicans have stepped in to defend the law in the court battle.

The Supreme Court is scheduled to hear oral arguments on the Proposition 8 case on March 26 and the DOMA case, Windsor v. United States of America, on March 27.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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