Same-sex marriages may be happening in North Carolina — thanks to the U.S. Supreme Court’s refusal to review the Fourth Circuit’s Bostic decision, allowing such marriages — but one day soon that might change, Lieutenant Gov. Dan Forest suggests in a recent blog post on his website.
In the article (written under his signature but posted by Kami Mueller), the lieutenant governor defends his position that the states, and not the federal government, have the sole constitutional authority to make decisions about marriage.
A majority of justices have said as much, Forest adds, pointing to language from Justice Anthony Kennedy in the high court’s 2013 U.S. v. Windsor decision and agreed to by the court’s liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan):
The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.”
Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. . ..
With those words, Forest offers hope that the high court may yet take up a marriage equality case and reverse the tide of same-sex marriages now sweeping the country.
But Forest apparently overlooked Kennedy’s words immediately preceding the quote above, in which the justice points out as a given that state marriage laws must respect a person’s constitutional rights:
In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition. State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia . . .