Why the Supreme Court Will Fail America With Its Prop 8 and DOMA Decision
On Tuesday, the Supreme Court will issue a landmark decision on gay marriage in our country. Regardless of how the Court issues the decision, it will likely miss the boat on what this discussion regarding "marriage" should entail. Plainly said, the Supreme Court should reaffirm an important component of the Constitution — the importance of enforcing contracts between two consenting parties — and remove the state from the definition of marriage altogether. Unfortunately, the Court will simply issue a cultural edict that does nothing to "protect" marriage whatsoever.
The state has no interest in protecting cultural practices, either common or uncommon. This includes the definition and application of creating a "family" in our society. I don't buy the argument that gay couples have a right to marry. They don't. However, I also don't buy the traditionalist mentality that we are a nation founded on the importance of a nuclear family and wouldn't exist without it. We are a nation built on the rule of law, individual rights, and economic liberty. What makes our Constitution amazing in its brilliance is the definition of the state and its role in protecting our domestic security and providing a venue to arbitrate disputes. It is time that our modern society begin to recognize the inability of government entities to properly define a vague concept like "marriage."
Throughout the oral arguments, this discussion of what harms a "compelling state interest" or the "deleterious effects" is ridiculous. Justice Scalia didn't appear to understand the "deleterious effect" that the rate of divorce has on traditional couples, and Justice Kagan didn't seem willing to discuss whether or not the state had a compelling state interest in defining marriage to begin with. Reading through, we get this discussion that is simply focused on personal feeling and not on constitutionally guaranteed rights. Nowhere was it deeply debated on whether or not couples have had their rights to engage in contracts with other individuals unprotected to a large degree.
It's easy to get married these days, but extremely difficult to get divorced. People suffer because of it. Couples of any sort need to think about marriage a bit differently than they do. There are economic, social, and personal impacts that often aren't considered these days. Forethought in the form of a sound, reasonable contractual relationship gives the state a compelling interest in developing a body of law that properly governs relationships. Couples will find getting married takes more than a ring and a fancy wedding planner.
Regardless of the decision, this debate won't end. That's simply because "marriage" cannot be defined by the state. If you're a liberal on the issue, you're wrong. If you're a conservative, you're wrong. At least in term of the state's involvement, the only right side is to remove it altogether.