Could a Gay Marriage Ruling by Supreme Court Really Be Challenged?

Ethan Miller/Getty Images

Ethan Miller/Getty Images

Same-sex marriage has seen an incredibly long, draw out legal battle. The most recent round began at the Supreme Court, with the Defense of Marriage Act struck down. Without any specific ruling on a national level, the issue was once again propelled into the hands of the states. From there, lawsuits, appeals, and subsequent changes took place, sometimes state-to-state, sometimes at the appellate court, enacting changes on states within the circuit but not involved in the case. The Supreme Court chose on a number of cases to pass by appeals, and has thus far chosen to keep its own rulings narrow, leaving the decision to local bodies. However, recently the court’s justices chose to take on lower court appeals and finally make a comprehensive ruling on the equal right to marry. Judges announced on January 16 that they were address “the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?” Answers to both queries will have major effects on state policy and the lives of many.

Unsurprisingly, the upcoming decision has received political attention. President Barack Obama, previously quite publicly supportive of same-sex marriage, said during a YouTube interview: “My hope is that they go ahead and recognize what I think the majority of people in America now recognize, which is, two people who love each other and are treating each other with respect, and aren’t bothering anybody else, why would the law treat them differently. There’s no good reason for it.” He said that he “hopes the Supreme Court comes to the right decision,” but went on to talk about the national change in opinion that has already taken place.

Other politicians are less enthusiastic at the possibility. Mike Huckabee, previously the Republican governor of Arkansas, and a 2016 potential candidate suggested that legislatures at the state level should fight back against a pro-same-sex-marriage ruling. “I think I would put it before the legislature. I mean, we would ask, ‘We have a constitutional amendment in our constitution. Do we want to hold to that? Do we want to put it before a referendum of the people?'” said Huckabee, according to USA TODAY. “I mean, there are a lot of different angles to pursue it,” he said. So how realistic is this suggestion? The answer is: not very.

The Supreme Court of the United States has a long history of handling — or refusing to handle — cases that are controversial and extremely explosive for American citizens. During the civil rights movement, rulings were made that skirted the line between normative ideas of right and wrong. Some of them were morally reprehensible, but were legally sound.

Others were legally weak and morally disgusting. And there were even those bright historical lights — but questionable oath breakers — that may not have been good law, but were the right decisions. The point is, this is not the first important case to reach our judicial branch, and it’s hardly the first time politicians and citizens and suggested fighting back against the ruling. One way is to take it to the legislature, as Huckabee is suggesting. Another is to ignore it or protest until it’s changed. But it seems highly unlikely that any of these methods would be effective.

So it’s also important to understand that to an extent, SCOTUS does take into account the atmosphere of the nation and its politicians when it chooses what cases to take, and makes its decisions. What keeps our nation in line with the correct checks and balances? The executive branch keeps the legislature in check, the judicial branch keeps an eye on both the executive and the legislative, and the judicial branch is kept in check by the knowledge that it has absolutely no enforcement power. The power of the sword is not in the hands of the court. So to pass a ruling that would be ignored by other branches, or allowed to be ignored by other branches, would be a fatal flaw.

As cynical as it is, that means part of their jobs as justices is to consider the time, the ripeness of the nation for certain changes, and proceed from there. Maybe that means ruling differently, even poorly until the nation and political atmosphere is prepared for the change. Or even refusing to rule, as the court has in the past. Some would argue that the nation has been ready for same-sex marriage to be nationally legalized for some time now — and they are likely correct. Now, more than in the past, it’s clear that the time is right for this ruling, and it seems no coincidence that the court is choosing to hear it now.

Same-sex marriage is already legal across 35 states. That means, according to Freedom to Marry, that 70% of Americans live in a state with legalized same-sex marriage. Add to that the change in America’s culture and conscience, and it’s clear that if justices rule in favor of equal rights, and if Huckabee and others who sympathize with his rhetoric were to ignore the change, there would be consequences. The judiciary has the power of the sword behind it, and more importantly, the will of too many Americans for a ruling to be ignored.

Follow Anthea Mitchell on Twitter @AntheaWSCS 

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