This Wednesday, the Supreme Court denied a request for a stay on an order to allow gay marriages in the state of Kansas. Two justices, Scalia and Thomas, registered their opposition to the stay denial. While it was a first for any justice to vocalize dissent in such matters (none did so in a similar case involving Idaho and Alaska), the fact that only the two most conservative justices showed any support for traditional marriage in this instance had ominous overtones for proponents of that cause.
No reasons were given by the seven justices who denied the stay nor by the two who would have allowed it, and it is possible that legal minutia and technicalities were the motivating factors. Both Rod Rohrich and I agree that possibility leaves a glimmer of hope that the Supreme Court will uphold state defense of marriage amendments early next year. Another hope of pro-traditional marriage supporters is that the hesitancy of Chief Justice Roberts to intervene in the actions of other branches of government will extend also to referendums passed by the people.
All in all, however, the frequent overturning of overwhelmingly passed state propositions and amendments by judges makes it seem likely that the Supreme Court will end up doing the same. The Constitution certainly contains no clause that upholds gay marriage, and it is unquestionable that its writers and its ratifiers intended by “marriage” a union of a man and a woman only. But new “rights” are customarily invented by America’s court system these days, so it would not be surprising if that happens yet again.