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If you ever wondered what would happen should the topic of same-sex marriage come up to the Supreme Court, I don’t think you have to wonder about it anymore. It seems that when it comes to the hard questions, the Supremes are sometimes more than willing to let whatever may happen lower happen. It’s enough to make you wonder if even a Constitutional Amendment could make a difference.
A Senate panel approved a controversial proposal to write a gay marriage ban into the US Constitution.
The proposed amendment will go to the full Senate on June 5 for what is expected to be a heated debate on a ban backed by President George W. Bush.
“The American people support protecting traditional marriage, and we should give this amendment due consideration through the full legislative process,” Republican Senator Sam Brownback said.
“We must continue to fight for the protection of traditional marriage.”
The proposed constitutional amendment faces an uphill battle as it must be passed by two-thirds of senators, two-thirds of representatives in the House and then approved by two-thirds of the 50 US states.
However, the numbers of legislators, both for and against gay marriage, who say the matter is better left to the individual states, are too many to allow passage.
A previous attempt failed in Congress in 2004.
I doubt the Justices would make it easy should it make it through. Case in point: May 15, the Justices sidestepped a case on the legal parent of a girl whose parents were of the same sex:
The Supreme Court refused Monday to block a gay woman from seeking parental rights to a child she had helped raise with her partner.
Justices could have used the case to clarify the rights of gays in child custody disputes stemming from nontraditional families.
They declined, without comment, to disturb a ruling of Washington state’s highest court that said Sue Ellen Carvin could pursue ties to the girl as a “de facto parent.” The girl is now 11.
The case had brought a contentious issue to a court that has shied away from gay rights disputes.
Lawyers for the girl’s biological mother, Page Britain, told justices that the state court decision in this case and others around the country “pave the way for children to have an unlimited and ever-changing number of parents.”
Carvin’s attorneys had said the court has never agreed to hear a case involving parenting or visitation disputes arising from same-sex relationships, a recognition “that state courts can best provide the case by case attention these matters require.”
Carvin and Britain had lived together for five years before they decided to become parents. Britain was artificially inseminated and gave birth in 1995 to the daughter, known as L.B. in court papers. The girl called Carvin “Mama” and Britain “Mommy.”
The couple broke up in 2001 and the following year, when the girl was 7, Carvin was barred from seeing the girl. After Carvin went to court, Britain married the sperm donor. Justices were told that the father lives in Thailand.
The court’s action does not end the case. Carvin must now prove that she is a “de facto parent” defined by the state court as someone who though not legally recognized, functions as a child’s actual parent.
The case paints a nasty battle between the two women. Britain says she wanted to have the girl baptized in a Catholic church and that her former partner wanted to take L.B. to a Buddhist temple.
Carvin contends she was the active parent.
One of Britain’s lawyers said Monday that the Supreme Court should provide direction to lower courts.
“This is becoming a huge can of worms when courts do not follow the more conventional lines of parental rights,” said Jordan Lorence, senior vice president for the Alliance Defense Fund, an Arizona-based group that has fought same-sex marriage. “This is an issue that the Supreme Court is going to hear at some time in the future.”
The case is Britain v. Carvin, 05-974.
