Overruling the People: Marriage Showdown Coming

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In the past five months, federal judges have made it their priority to redefine marriage. They've struck down marriage protection laws in 12 states, and the judicial onslaught probably won't end until the Supreme Court gets involved.

In less than twenty years, America's support for gay marriage has more than doubled from 25 to 55 percent. It's one reason gay advocates have boldly challenged traditional marriage.

"More and more people just don't see anything wrong with homosexuality and because of that the legal challenges I think are following the cultural changes," said Brad Jacob from the Regent University School of Law.

Over a number of years, 33 states took action to protect traditional marriage. Voters approved constitutional amendments in 29 states, and in four states lawmakers passed bills upholding it.

Now in just a short time, gay rights advocates have pushed and judges have acted, striking down 12 of those laws.

Kellie Fiedorek of the Alliance Defending Freedom said, "The larger concern here is that the definition of marriage which is so important, so intrinsic to the good of our society, should not be decided by a handful of judges."

The legal turning point came last summer when the Supreme Court ruled that the federal Defense of Marriage Act violated the Constitution.

"The lack of serious reasoning in that case has I think led proponents of same sex marriage to think the path is clear to imposing same-sex marriage nationwide," said Ed Whelan of the Ethics and Public Policy Center.

Yet conservative legal scholars point out that the decision doesn't mean states must stop protecting traditional marriage.

"The Supreme Court said nothing good or bad about same-sex marriage and they certainly did not impose a 50 state mandate saying that every state now needed to change their marriage laws," said Fiedorek.

Most court watchers believe the justices will take up the issue of marriage within the next two years. A big reason why is that the lower federal courts disagree about whether or not keeping the traditional definition violates the Constitution.

"Right now you've got some lower federal courts saying it's a denial of equal protection of law to allow gay marriage. And other lower federal courts are saying, 'No, that's not a constitutional violation,'" Jacob said.

"The Supreme Court doesn't usually like to let a situation go on very long where the Constitution means different things in Utah than in Massachusetts," he explained.

Just how the court might rule is anyone's guess.

"Up until this point the Supreme Court has not found any fundamental right to practice homosexuality but they could be on the verge of doing that," Jacob said.

The court could simply legalize gay marriage, meaning states could not deny gays a constitutional right to equal protection. Many Christians fear that would also greatly hinder religious liberty.

Or the justices could decide that the Constitution does not speak to the issue of marriage, and hand the issue back to the states.

Either way, the implications are huge.

And what does this means to a government for and by the people. Will voters revolt or give up when they consistently see activist judges overturn the laws they pass?

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Heather Sells

Heather Sells

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