Is Same Sex Marriage A Constitutional Right?

November 5, 2009

If recent election results in Maine are any indication, it looks like proponents of same sex marriage are a long way from winning at the ballot box.  Prior to the vote, it seemed likely that the proposition would pass. That was an incorrect assessment, and it really shouldn’t be that much of a surprise. Maine is now the 31st state to block gay marriage through a voter referendum. Many states permit gay marriage, but only through legislation or court decisions.

When the voters decide, the answer always seems to be the same: No. This is democracy in action, I guess.

That might not be the end of the story, however. A federal case heard in California in October may have cleared the way for the Supreme Court to rule on this question soon.  The suit is brought by former U.S. Solicitor General Ted Olsen and superstar lawyer David Boies.

If the Supreme Court hears the case, the issue may be decided once and for all.  If not, there is the argument that things are as they should be, with each state deciding whether or not to permit gay marriage. Last April Steve Chapman, a writer for, wrote a column called A Federalist Case For Gay Marriage. Here’s what he had to say, in part:

“Given the strong feelings about gay marriage, the local option is the best option. States that abhor the idea should be free to implement policies reflecting that sentiment. But the other side should have exactly the same prerogative: giving both heterosexual and homosexual couples access to marriage in full”.

In short, let democracy work by letting the voters decide.

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