Many people I have talked to recently seem to think that the upcoming Supreme Court rulings on Proposition 8 (Hollingsworth v. Perry) and The Defense of Marriage Act (United States v. Windsor) are going to be solely black and white rulings; that the SCOTUS will either rule that states that bar gay marriage are acting constitutionally, or that they are not. It might seem that way at the surface, but for the justices, it’s not so crystal clear; the issue is much more complex than that.
For one, you have to look at how much federal power should be involved in the matter. Marriage used to be, in fact, solely a religious institution, originally having nothing to do with the government. Because of that, the thought of getting government completely out of marriage sounds very appealing to many, especially to libertarians like myself. Wouldn’t that be the most reasonable solution, just as it used to be?
Maybe on paper, sure. But you have to look at the fact that over the past century, government has involved the institution of marriage into an abundant amount of its policies. A lot of folks like to cite the tax code, and that is a fine example. You can also look at property laws, divorce settlements, health care, children, wills, and so on. Can we truly get the government out of marriage completely? Sure, but by doing so, you have to reduce the institution of marriage as defined by the state to become nothing more than a social relationship. As a result, couples would have little to no legal value whatsoever. We would basically have to revamp a huge chunk of our country’s economic and social systems to prevent that, which is obviously not practical by any means.
The LGBT community have a constitutional right to not be discriminated against by the government, and the only realistic solution to that is for SCOTUS to rule that same-sex couples should receive the same federal benefits as everyone else (therefore forcing to redefine the federal definition of marriage), while religious institutions should still be able to do as they please, via the First Amendment. In my humble opinion, the ideal solution would be for the federal government to get out of the marriage business completely, but alas, it seems to me that really cannot be done.