On March 26, 2013, the Supreme Court will hear oral arguments regarding California’s ban on homosexual “marriage.”  The Court will determine whether California’s ban violates the constitutional rights of homosexual and lesbian couples to equal protection.  The Supreme Court will further decide whether the federal Defense of Marriage Act (“DOMA”) violates the civil rights of homosexual and lesbian couples to have their “marriages” recognized in all 50 states.  President Obama’s “Administration” has weighed in arguing that California referendum and DOMA express “impermissible prejudice.”  The oral arguments come on the heels of a conveniently published Washington Post-ABC News poll that reported public support for homosexual “marriage” has “hit a new high as Americans increasingly see homosexuality not as a choice but as a way some people are.”  The Washington Post article stated that the new poll showed that 58 percent of Americans now believe “it should be legal for gay and lesbian couples to get married; 36 percent say it should be illegal.”  Given the decades-long torrent of propaganda that has been foisted on the American people by the institutions of influence in our society, I am surprised that the numbers in support are that low.  And then, positioning for a 2016 presidential run, former New York Senator and ex-Secretary of State Hillary Clinton has now flipped, and now supports homosexual and lesbian “marriage.”

George Will, writing recently in the Washington Post, warned “[the oral] arguments will invoke the intersection of law and social science. The [Supreme Court] should tread cautiously, if at all, on this dark and bloody ground.”  Mr. Will cites a brief submitted in this case by the distinguished, conservative professors Leon Kass and Harvey Mansfield, and the Institute for Marriage and Public Policy, which warns that “the social and behavioral sciences have a long history of being shaped and driven by politics and ideology.”  Professors Kass and Mansfield further note that the stability of same-sex marriages or child-rearing by same-sex couples is “radically inconclusive” because these are recent phenomena and provide only a small sample from which to conclude that these effects will be benign (as compared to six thousand years of recorded history involving traditional marriage).  Mr. Will writes, “The brief is a preemptive refutation of inappropriate invocations of spurious social science by supporters of same-sex marriage.”  You can read the interesting Kass/Mansfield brief here .

The Roberts Supreme Court can learn an important lesson from its 1973 decision in Roe v. Wade, which legalized abortions in the United States.  Justice Blackmun, writing the Roe opinion, found a right to abortion, of course, not in any specific text of the Constitution, and explicitly rejected the unborn child’s “right to life” argument.  However, he found the right to an abortion grounded in the penumbra of emanations of privacy rights.  (But why doesn’t a penumbra also emanate from the First or Second Amendments?)  The Roe decision set off a firestorm of controversy in our nation comparable to the Supreme Court’s decision in the Dred Scott case that ultimately led to the devastating Civil War.  In the wake of the Chief Justice Roberts decision on the so-called Obamacare legislation, we are often told that Justice Roberts’ primary focus is the legacy of his Supreme Court.  If such is truly the case, then he would guide the Court to leave the decisions about marriage in the hands of the individual states, as marriage has never been considered a federal matter under our constitutional system.  If the people of an individual state wish to permit homosexuals and lesbians to enjoy the bonds of a form of matrimony, then, under our system of government, that should be the decision of the people and their representatives.  In his dissenting opinion in Doe v. Bolton, the case consolidated and decided with Roe v. Wade, Justice Byron White unknowingly gave some astute advice to Chief Justice Roberts, when he wrote:

The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand.  As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

(Emphasis added.)  This sounds like direct and sage advice from Justice White to Chief Justice Roberts, and does not rely upon the penumbra of emanations from his dissenting opinion.