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The Daily Wildcat

The Daily Wildcat


    Column: SCOTUS decision to leave marriage rights to states respects federalism

    “The powers not delegated to the United States by the Constitution … are reserved to the States respectively, or to the people.” So reads the Tenth Amendment to the U.S. Constitution. The Supreme Court wisely enough realizes that some decisions are best left to the people. Relatively simple, one would think, until you consider that these days, most Americans think the Supreme Court should tell states what their laws should be.

    Read the opposing argument: SCOTUS not hearing cases this term on marriage rights, LGBTQ advocates should be pleased

    It is best to remember this amendment when discussing the Supreme Court’s recent decision not to hear any marriage-rights cases this term.

    Many, when looking at last week’s decision, see an unwillingness on the part of the Supreme Court to touch such a thorny subject. They question why the Court would avoid an issue with such a direct impact on daily life, an issue that takes on increasing importance with each passing day.

    But that’s precisely the point. Marriage rights is a snowballing issue, and the Supreme Court wants to see it on its way down the hill before it chooses to step in.

    The Supreme Court has a reputation to protect and a very difficult line to walk in a democratic society. And with 75 percent of respondents in a 2012 New York Times poll agreeing that the justices’ personal and political beliefs impinge on their judicial decisions, that reputation as a neutral buffer against the excesses of democracy is in danger.

    So in the case of the Supreme Court and the constitutional law of this country, it actually makes sense for the justices to save for tomorrow what they could, technically, get over with today.

    David Marcus, a law professor at the James E. Rogers College of Law, suggests, “The Supreme Court is perhaps only delaying the inevitable. It probably wants to see more lower court decisions across the country in favor of gay marriage before it decides to hear a case on the subject, so that when it does, there is little opposition to a decision in favor of same-sex marriage.”

    There is wisdom in the Supreme Court’s inaction. It serves as an invitation to marriage-rights advocates to challenge laws barring same-sex marriage in their own district courts, through their legislatures and with good old-fashioned popular pressure. Lesbian, gay, bisexual, transgender and questioning activists must work harder to continue challenging the traditional definitions of marriage before resorting to the overwhelming judicial activism of the Supreme Court.

    There are now 30 states plus the District of Columbia where same-sex marriage is legal. This leaves just enough room for the kind of robust debate that such a decision deserves.

    The whole idea of the American federal system rests on the assumption that very few powers are reserved for the federal government, with all others to be exercised by the states. The rationale behind asking the Supreme Court to make pronouncements on matters within the exclusive power of the states is questionable at best. The fight over marriage rights is rightfully located inside local courthouses and state capitol buildings until such a time as a concurrence is reached among the states.

    When that happens, it will finally be time for the Supreme Court to adjudicate the issue with minimal fuss. But first, let there be positive consensus among the people, who have the constitutional right to define marriage: “the States respectively, or … the people.”


    Chikezie Anachu is an international trade and business law student. Follow him on Twitter.

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