Bad Idea: Religious Groups Hound SCOTUS to Settle Gay Marriage (Updated)

Update (1:15pm PST) – Lawyer and political activist Harry Niska points out that the Church of Jesus Christ and Latter Day Saints, along with their fellow religious organizations signed to the friend-of-the-court brief referenced below, have petitioned the Court to remand the issue of marriage to the states, not to impose their own definition of marriage nationally.


In his book Power Divided Is Power Checked: The Argument for States’ Rights, former talk radio host and political commentator Jason Lewis lays out a compelling case for restoring the Founders’ intended federalism. He notes that what began as a “layer cake,” with clearly defined jurisdictions and powers, has been slowly muddled into a “marble cake,” where local, state, and federal levels intertwine incestuously.

Much has been made in recent years of the polarization of American politics. It seems as though partisans and ideologues across the political spectrum have become less tolerant and more vitriolic. Lewis points out the likely reason for this. As the government of the United States becomes less federal and more national, the stakes of political contests escalate. As the stakes escalate, so does the tension as all stakeholders have more to gain (and to lose) with each successive election, legislative session, or court case.

The solution, according to Lewis, is decentralizing authority and returning powers to the states. That way, if you lose your issue in a given state and feel particularly sore about it, you can move to another state. Additionally, states can compete with each other for the most attractive political and economic environment.


One major obstacle to pursuing this solution is the tendency on both ends of the political spectrum to seek one-size-fits-all national dictates of any given policy. Fox News brings us a timely example:

The Mormon church and four other religious organizations are asking the U.S. Supreme Court to intervene and settle once and for all the question of whether states can outlaw gay marriage.

The Church of Jesus Christ of Latter-day Saints, in a statement Friday, said it joined a friend-of-the-court brief asking the high court to hear Utah’s marriage case.

“The time has come to end the divisive national debate as to whether the Constitution mandates same-sex marriage,” the brief states.

Multiple organizations and governmental entities on both sides of the debate have filed similar briefs asking the court to take up the issue.

Whatever your position on an issue like gay marriage, you should be far more concerned with the fact that nine individuals retain the power to dictate the legal definition of a social institution for over 300 million. That obscene power, embodied to a slightly more defuse degree in the Congress and a slightly more unilateral degree in the executive, attracts those who would wield it against their enemies. Like the One Ring, no one ought to bear it for long, and it ultimately should be destroyed.


Instead of asking the Supreme Court to “settle gay marriage” as if they properly may, groups on both sides of the issue ought to be calling for the division and separation of powers so that Americans may then choose under which laws to live, by voting with their feet.

(Today’s Fightin Words podcast is on this topic available here. 11:47 minutes long; 11.38 MB file size. Right click here to download this show to your hard drive. Subscribe through iTunes or RSS feed.)


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