Has the Supreme Court Already Decided on Gay Marriage?

Supreme Court Justice Clarence Thomas filed a dissenting opinion against the Supreme Court’s most recent ruling on gay marriage. He said the Supreme Court is acting like they have already made up their mind concerning the national future of gay marriage:

Thomas filed a dissenting opinion after his colleagues rejected Alabama’s plea to put a hold on same-sex marriages in the state until the Supreme Court resolves the issue nationwide in a few months.

He criticized his fellow justices for looking “the other way as yet another federal district judge casts aside state laws,” rather than following the customary course of leaving those laws in place until the court answers an important constitutional question.

“This acquiescence may well be seen as a signal of the court’s intended resolution of that question,” Thomas wrote in an opinion that was joined by Justice Antonin Scalia. “This is not the proper way” for the court to carry out its role under the Constitution, he wrote, “and, it is indecorous for this court to pretend that it is.”

Indeed. If the Supreme Court has not already decided on the national fate of gay marriage (as if they have the right to do so to begin with), they shouldn’t act as if it’s already decided. Seems like a no-brainer.

Roy Moore, the justice in Alabama whose appeal for a stay was denied, continues to call on Alabama officials to resist the Supreme Court’s decision. Many might wonder how that would even work out. Based on the Supremacy Clause, many say, the Supreme Court has final say over state courts. I think that’s a misreading of the Supremacy Clause. It was designed to make sure that treaty negotiations and the laws of the Constitution were followed in all the states. That doesn’t mean that the Supreme Court can tell states what to do, per se. The Constitution is the supreme law of the land, but the responsibility to interpret the Constitution was not entrusted to any one civil institution, and it also doesn’t mean that the Supreme Court can force the states to abide by its interpretation.

Unless there is an amendment to the Constitution enshrining gay marriage as a right, the state of Alabama can do about it whatever it chooses (according to the Tenth Amendment). The Supreme Court wants to act like gay marriage is already legal. It’s not. In order to be nationally enforced, it has to be turned into a national amendment. Good luck getting the states on board with that.