The first principle is federalism, which means that states retain powers not given to the federal government. Family law is an example of a policy area where states take the lead, not Washington. The second principle refers to a quote by the early 20th-century Justice, Louis Brandeis, that states are “laboratories of democracy.” Where controversy over good policy exists, states can make their own choices, and the states that choose the best will excel. The third principle holds that the Court should be cautious when it rules in an “uncharted area.” Same-sex marriage is a modern invention, and legalizing it nationwide could have many unforeseen consequences. The fourth principle highlights the gap between what same-sex marriage supporters want and how they say the Constitution entitles them to it. They argue that the Fourteenth Amendment mandates same-sex marriage because it guarantees “equal protection of the laws,” but the Court has never before applied that clause to marriage, and in 1972 the Court dismissed such a claim.
The principles put forward in this current amicus brief ought to give the justices pause. Most observers expect Justice Anthony Kennedy to be the swing vote. He has often invoked the importance of federalism, and now he has the chance to prove he meant what he said. Forcing every state to permit same-sex marriage would be a complete rejection of federalism. Justice Kennedy should let us continue to live with state marriage laws.
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