Short answer: probably. The Supreme Court heard arguments on same-sex marriage yesterday, and I find it improbable they will come down on the side of states’ rights for this issue.
For two-and-a-half hours — more than twice as long as a typical oral argument — the justices weighed two questions: Does the Constitution require states to license marriages between people of the same sex, and, if not, must states at least recognize lawful same-sex marriages performed in other states?
The conservative justices, not normally eager to acknowledge legal traditions outside America, cited everyone from the ancient Greeks to the hunter-gatherers of the Kalahari in making the argument that marriage has been universally understood to be between a man and a woman.
Why would the federal government be involved in this issue? The federal government doesn’t even issue marriage licenses. Why should they define marriage? But that’s not really the question. What the Supreme Court is deciding right now is whether or not states are allowed to “discriminate” against homosexuals. In other words, does the Constitutional promise of equal protection under the law prevent the Supreme Court from standing idly by while states discriminate against homosexuals?
But here’s where things get really weird. Where will this end? Right now, homosexual marriage is actually illegal in many states. Bestiality is also illegal in many states. Are states discriminating against zoophiles? Yes. States discriminate against everyone who is trying to do something illegal. That’s the basis of the law.
So, unfortunately, this issue raises a question that can’t be answered outside of a fixed and objective concept of law. Where do you draw the line for marriage? If same-sex marriage is allowed, why not human-animal marriage? This is not merely a reductio ad absurdum argument. I’m serious. Why shouldn’t people be allowed to marry animals? If you’re going to force states to change their laws concerning marriage, you need to have some binding principle and definition to organize the new ethical environment. And that new ethical environment indicates that natural biological compatibility doesn’t matter.
That’s the real problem here. Conservatives and liberals alike want to avoid this problem. They want to find some common ground for ethics in a secular society. They think they can find natural laws without reference to “Nature’s God.” They think they can continue to hold to inalienable rights while they endorse so many unconscionable wrongs. It doesn’t work that way.
Conservatives have been happy to leave the path of truth and justice, but they don’t want to lose sight of the path. That’s what this Supreme Court decision represents. “We’re lost. Why shouldn’t we go deeper into the wild woods? I hear there aren’t as many briars if you don’t stay so close to the road.”