The Battle Over the Constitutionality of Same-sex Marriage: Can Either Side Win?

COMMENTARY | While the issue of same-sex marriage remains largely unsettled from a national perspective, those Americans in favor of it have some reason to celebrate. The states of Washington and California ruled in favor of same-sex marriage earlier this week, albeit in different ways.

On Thursday in Washington, the state's House voted 55-43 in support of a bill that would legalize the practice. This, along with a 28-21 vote of approval from the Senate a week earlier, means the law will go into effect in June, unless conservative opponents are successful in putting the issue on the voting ballot in November.

Days before that in California, the 9th Circuit Court of Appeals ruled that the ban on same-sex marriage in California was unconstitutional when it overturned the controversial Proposition 8. This decision will likely be appealed to a higher court in the 9th Circuit, and then possibly thereafter to the Supreme Court.

The 9th Circuit has for a long time been a thorn in the sides of many conservatives. Newt Gingrich, in a Republican Presidential debate this past December, even called for the Court to be abolished. Gingrich's call for eliminating the 9th Circuit seems implausible at best, but his reservations about the power the federal courts wield are more reasonable.

Gingrich is accurate in pointing out that the Supreme Court ruling Roe v. Wade in 1973 certainly did not end the debate over abortion, another social issue akin to same-sex marriage. If and when the Supreme Court does rule on same-sex marriage, any decision they come to will not settle the controversy surrounding the issue.

It's clear that the "backlash" from the enactment of Proposition 8 two years ago, and from the Washington and California decisions earlier this week, prove that same-sex marriage is an issue that cannot be compromised on. There is simply no middle ground that can be accepted by both sides. This means that the Supreme Court will eventually have to step in and provide the American people its verdict.

The question remains though, does the judicial branch of our government have the Constitutional power to provide the final word on controversial social issues like same-sex marriage? And if it does, should it have that power?

Whatever your opinion on the issue, events have been set in motion for this issue to be decided at the federal level. It might take years, but with the rulings in Washington and California, it appears the Supreme Court will give us its answer on same-sex marriage sooner rather than later.

Sources:

"Appeals court rules California's same-sex marriage ban unconstitutional", Associated Press.

"Landmark Cases of the Supreme Court: Roe v. Wade", Streetlaw.org

"Newt Gingrich Statement on 9th Circuit Court Decision Regarding Proposition 8", newt.org.

John Diaz, "The ugly backlash over Proposition 8", San Francisco Gazette.

Tom Watkins, "Washington Legislature Votes to Approve Same-sex Marriage", CNN.