COURT RE SAME-SEX MARRIAGE: Supreme Upset? Not Quite

If you didn’t see the reports yesterday of the Supreme Court’s refusing to issue a Writ of Certiorari to hear a group of cases over gay marriage, I’m not sure where you were.  The gay rights activists were celebrating, traditional marriage supporters angry.  But they shouldn’t be, either of them.  It’s not a nail in the coffin for traditional marriage in America.  Yes, certain states will have stays lifted which will allow gays to marry despite laws passed to the contrary.  That’s not good.  But the celebration, and rage, are a bit premature.

The fact that the Court refused to hear the cases isn’t unusual.  The Court doesn’t hear every case brought before it.  They can select cases on issues that they want to hear and rule upon.  In this instance, the Court didn’t comment on why they refused.  It might be because the cases brought to them don’t frame the issue in a manner that is worth their decision at the moment.  It might be because they can see other cases coming up the ladder, so to speak, that would be better to hear and rule upon on this particular issue.  It could also be something else.

Gay marriage is an issue that should be decided on a state level, not a Federal one.  The cases brought to them asked for a ruling that there is a constitutional right to same sex marriage.  News flash for everyone, there isn’t a constitutional right to traditional marriage. There isn’t a constitutional right to marry anyone.  It can and is regulated by government, but there is no right to marry.  States, and parts of the Federal government, get into passing laws about it for various reasons:  taxation, inheritance laws, health insurance, charging fees for licenses, making sure that certain types of marriage aren’t allowed (think polygamy, children marrying anyone, certain family members marrying, or in some places same sex marriage).  That may confer some expectation that people can marry, but it doesn’t confer a constitutional right to marriage.

Is it possible that the Court doesn’t want to open that can of worms?  Yep, it sure is.  A very liberal SCOTUS might just decide there is a “right” to marry anyone of your choosing (and isn’t THAT a can of worms that needs to stay closed?) as they famously did with the “right” to murder your unborn child.  A conservative Court most likely will not.  It all boils down to two things:  states’ rights and the makeup of the Court.

The 10th Amendment leaves everything that isn’t enumerated, or listed specifically, in the Constitution left to the States or the people.  Pretty simple.  Yet over the last few decades most states have allowed the Federal government to usurp their power and rights. Social Security, Welfare, Medicare and Medicaid, Obamacare, the Fed… all of these federal programs take power away from the States and dump them on the federal level. DOMA, while a good idea, was also a states’ rights usurper.  States have the right to make the decision, through the elected officials that the people select, to decide if that state will allow, and recognize gay marriage.  Federal Courts have no jurisdiction to get in the middle of it, yet they have.  That is possible reason number 1 that the SCOTUS decided to butt out.

The lower court rulings will stand, for now.  SCOTUS can, and probably will, take up the issue in the future.  That works to the benefit of those who think that traditional marriage should be protected, or at least left alone.  Mid-term elections are coming in less than a month.  Thinking positively, when the GOP takes back the Senate, any nominee that Obama puts forth for the Court can and probably will be blocked.  

The Court could just be making a heading for the right.  How?  Well if a Republican takes the White House and we keep the Senate in 2016, theoretically several new conservative justices could be appointed to the bench.  Right now the only two “young” liberals are Sotomayor and Kagan.  When the issue comes back to a more right leaning court, a 5-4, 6-3 or even a 7-2 traditional marriage decision by 2020 isn’t impossible.  Actually it’s rather probable.

Don’t you think that the majority of the Court may just have thought about that?  Crazy to let the lower court rulings stand?  Crazy like a fox!

Image: Modified from


About the author: Suzanne Olden

Suzanne Reisig Olden is a Catholic Christian, Conservative, married mother of two, who loves God, family and country in that order. She lives northwest of Baltimore, in Carroll County, Maryland. She graduated from Villa Julie College/Stevenson University with a BS in Paralegal Studies and works as a paralegal for a franchise company, specializing in franchise law and intellectual property. Originally from Baltimore, and after many moves, she came home to raise her son and daughter, now high school and college aged, in her home state. Suzanne also writes for The Firebreathing Conservative website ( and hopes you'll come visit there as well for even more discussion of conservative issues.

View all articles by Suzanne Olden

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