Wednesday’s Supreme Court rulings on marriage, while hardly unexpected by most traditional marriage advocates, have nonetheless left social conservatives disappointed. For supporters of traditional marriage, the saving grace of the rulings was that they did not apply to the 35 states with definition of marriage laws or constitutional amendments.
That situation is likely to change. If, as Justice Kennedy wrote in United States v. Windsor, a traditional marriage definition “violates basic due process and equal protection principles” then it is likely that future Supreme Court rulings will invalidate the right of the states to keep marriage between a man and a woman. This may come through a direct challenge to a state constitutional marriage amendment or through the Constitution’s Full Faith and Credit Clause, which requires that states respect “the public acts, records, and judicial proceedings of every other state.” Barring a change in the balance of the Court, it is likely that the justices will continue to chip away at traditional marriage.
One possible response to the rulings would be to give up and move on. Polling shows substantial movement toward acceptance of gay marriage in recent years. A CNN/ORC poll from June 11-13 shows that 55 percent of Americans now believe that same-sex marriage should be recognized as valid with 44 percent opposed. Ten years ago, 55 percent opposed same-sex marriage and 39 percent approved. Much of the change has come since Barack Obama was elected president.
Public opinion is not static, however, and the stakes are high. A 2012 study reported in Examiner found that the instability of gay families is more likely to cause children to experience depression, substance abuse, delinquency, sexual abuse, and a variety of other problems. Studies from Europe’s experience with gay marriage show that childbearing has become increasingly separated from marriage in those countries. This leads to more entitlements and government debt. Likewise, the cost of Social Security and benefit payments for gay partners cannot be accurately calculated, but may well be greater than the additional tax revenues the government will receive.
On another social issue, public opinion has reversed in recent years. In 2009, for the first time in more than a decade, more Americans considered themselves to be pro-life than pro-choice according to Gallup. A Gallup poll from May 2013, found that 48 percent of the country is pro-life and 45 percent pro-choice. As recently as 1995, pro-choice Americans had outnumbered pro-lifers by 23 percentage points (56 to 33 percent).
Even though Roe v. Wade still stands, states can tighten restrictions on abortion incrementally. Many states prohibit late term abortions and some states have effectively regulated abortion clinics out of business. No such incremental restriction would be likely if the Supreme Court decrees that gay marriage is the law of the land, so what logical course, other than voting for politicians who will appoint judges friendly to traditional marriage, can marriage supporters take?
Since definition of marriage statutes have proven less resilient than amendments, gay marriage proponents will likely target those states with lawsuits or attempt to pass their own legislation. Marriage supporters are also likely to attempt to pass additional definition of marriage amendments, even though state constitutions are vulnerable to federal judges.
A more permanent solution might be to resurrect the idea of a federal marriage amendment. An amendment to the Constitution defining marriage was attempted in the past, but failed. On June 26, Rep. Tim Huelskamp (R-Kan.) announced his intention to reintroduce an amendment preserving traditional marriage.
According to the Constitution, an amendment must be passed by a two-thirds vote of both the houses of Congress. This would require 288 votes in the House and 67 votes in the Senate. Currently the GOP controls the House with 234 seats, 54 short of the necessary majority. If the amendment passes the House, it is unlikely to succeed in the Senate where Democrats hold the majority. A Constitutional amendment does not have to be signed by the president.
The Constitution does provide an alternate means of proposing an amendment. Two-thirds of the states, 30 legislatures, can call a constitutional convention. This method has never been used to amend the Constitution.
In either case, the proposed amendment must be ratified by three-fourths of the states to become law. This would require acceptance of the new amendment by 38 of the 50 states, a number very close to the number of states that already have marriage laws. With changing attitudes towards same-sex marriage, the outcome of an attempt to amend the Constitution could easily go either way, but the difficulty in amending the Constitution (there have been only 27 amendments in more than 200 years, the last in 1992) favors gay marriage advocates.
Although this week bore good news and celebrations for supporters of gay marriage, the issue is not yet decided for the majority of the country. The fight will almost certainly continue for both sides for years.