The Supreme Court and same-sex marriage

The Supreme Court held oral arguments this week on two high-profile cases involving same-sex marriage, and the justices’ questions made it clear that they are somewhat reluctant to deal with this issue yet. Nevertheless, it is clear that same-sex marriage is now accepted by a majority of the public as a whole, and an overwhelming majority of those under 40. So irrespective of any religious objection, and whatever the Supreme Court rules in these particular cases, same-sex marriage will became legal throughout the US in the near futurr.

Public attitudes toward racial segregation in this country turned around in only about two generations, which is remarkably fast for such a deep-seated cultural standard. Public sentiment toward same-sex marriage has reversed in even a shorter time, which is really remarkable.

What will be interesting to watch is on what grounds the Supreme Court finally resolves these cases. They could rule that the definition of marriage is a matter for states to resolve, and the federal government has no business interfering.  That would be consistent with states’ rights. But it poses a difficult problem. If some states allow same-sex marriage and other don’t, what is the legal position of a same-sex couple married in one state but now living is a state that does not recognize same sex marriage?  And what is the legal position of that couple with respect to federal benefits?  The states’ rights position creates more legal problems than it solves.

On the other hand the Supreme Court could base their ruling on constitutional grounds, but such a ruling, either for or against same-sex marriage, would have to apply to the whole county. My guess is that this is the route the Court will eventually adopt, though perhaps not in these cases. It is the only route that ensures a consistent legal position in all states and in federal laws. 

It will be interesting to see how this plays out.