Brian and Garrett Fahy

This week, the Supreme Court heard oral argument in two gay marriage cases: Hollingsworth v. Perry, which will decide the fate of California’s Proposition 8; and United States v. Windsor, which will decide the fate of the Defense of Marriage Act (DOMA), signed in 1996 by President Clinton. At issue are two written authorities, a California law that resulted from a citizen initiative, and a federal statute that resulted from wide, bipartisan congressional consensus.

In ruling on those laws, the Court will rely on other written authorities: the Constitution, the 5th and 14th Amendments to the Constitution, and its own prior decisions, including Loving v. Virginia, Romer v. Evans, Lawrence v. Texas, and perhaps Sherrer v. Sherrer, in which the Court held, “Under the Constitution, the regulation and control of marital and family relationships are reserved to the States.”

None of these authorities explicitly says there is a federal right to gay marriage, or that state laws outlawing gay marriage are unconstitutional. But of course, it’s not that simple. The Court’s decisions, likely to be rendered in June, will take the form of written opinions. Those opinions cannot and will not settle the gay marriage debate because it is not amendable to final resolution via textual interpretation. Rather, it is an ongoing matter not just of law, but also of faith, experience, and emotion. A quick look at the arguments for and against reveals why.

The most common non-legal reasons offered for national legal recognition of same-sex marriage are the following: (1) I should be able to marry whomever I love; (2) my marriage doesn’t affect yours; (3) I support gay marriage because someone I know is gay; and (4) don’t impose your religious values on me; my religion supports gay marriage, or doesn’t proscribe it.

Conversely, the most common non-legal reasons against national legal recognition of same-sex marriage are the following: (1) no one is entitled to marry whomever they choose; states have regulated marriage since the country’s inception; (2) radically redefining marriage will harm society; (3) I will not support gay marriage regardless of who in my life is or is not gay; and (4) my religious beliefs impel me to support only man-woman marriage.

Unlike the limited scope of the Supreme Court’s decision-making, which is confined to the specific authorities referenced above, these arguments rely on emotion, relationship experiences, religion and gut instincts. Thus is revealed the true divides in this debate.


Brian and Garrett Fahy

Brian and Garrett Fahy are attorneys from Los Angeles who previously worked in the White House and Senate Republican Conference, respectively. They write on national legal and political affairs. They can be reached at BGTownhall@gmail.com.


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