Conservatives Split on High Court’s Gay Marriage Rulings Compared to Roe v. Wade

Fred Lucas | June 26, 2013 | 8:44pm EDT
Font Size

Renata Moreira, right, and partner Lori Bilella embrace at San Francisco's City Hall shortly before the U.S. Supreme Court ruling cleared the way for same-sex marriage in California on Wednesday, June 26, 2013. The couple plans to marry. (AP Photo/Noah Berger)

( – Not all traditional marriage supporters agree on whether the two Supreme Court 5-4 rulings on same-sex marriage are comparable to the Roe v. Wade ruling that legalized abortion in terms of imposing a national law.

“The Supreme Court stepped back from the brink by not imposing a redefinition of marriage for all 50 states,” Peter Spring, senior fellow of policy studies at the Family Research Council, told “Advocates of redefining marriage did not get all they wanted today. Nevertheless, we are very disappointed in the court’s decision in both the DOMA and Proposition 8 cases.”

The Supreme Court, in striking down a key provision of the 1996 federal Defense of Marriage Act (DOMA) in the case of Windsor v. United States required same-sex couples would be eligible for federal benefit, but did not impose a national recognition of gay marriage, similar to the 1974 Roe v. Wade ruling that nationalized abortion law, which had previously been decided on the state level.

However, others say the court’s decision not to recognize the standing of the defendants in the Proposition 8 case, Hollingsworth v. Perry, similarly takes an issue out of the hands of the people. In Proposition 8, California voters approved a referendum to recognize marriage as only between one man and one woman in 2008.

“We would compare it to Roe v. Wade. The justices had the opportunity to say, and didn’t say, ‘let the people decide,’” Mario Diaz, general counsel of Concerned Women for America, told “Like Roe v. Wade, they have invited hundreds of thousands of more cases and created more chaos with state law.”

Californians adopted the ballot initiative process in the early 20th century to respond to an unresponsive government. Diaz said this becomes pointless if the state government has de facto veto over a law duly enacted by referendum simply by not defending it.

“This effectively destroyed the initiative process,” Diaz added. “All the executive branch has to do is choose not to defend a law.”

After his election, California Gov. Jerry Brown announced the state would not defend Proposition 8 after it was approved in California. However, the California state Supreme Court – the same court that had prompted the referendum by recognizing same-sex marriage as a right – determined that the initiators of Proposition 8 had standing to defend the law against legal challenge.

“The court does not strike down the laws of all 50 states, but by refusing the Prop 8 decision, it called into question what all 50 states can do and lays the groundwork to challenge the right of the people to define marriage,” Maggie Gallagher, a fellow at the American Principles Project and former president of the National Organization for Marriage, told

Citing the Proposition 8 case specifically, she said “there are significant parallels with Roe v. Wade.

“Not only is it undemocratic, it is unfair and unjust,” Gallagher said. “Something stinks to high heaven when the government can collude to strike down a law but to keep 7 million voters out of court.”

Sprigg said this pair of decisions will not affect current state laws.

Currently, 29 states constitutionally define marriage as between one man and one woman, according to the National Conference of State Legislators. These states are Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin.

States with statutes defining marriage as between one man and one woman are Hawaii, Illinois, Indiana, Pennsylvania, West Virginia and Wyoming.

Hawaii, however, recognizes civil unions for homosexual couples, as does Illinois and New Jersey, according to the NCSL.

States that allow same-sex marriage now includes California, along with Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington and the District of Columbia, according to the NCSL.

“If a same-sex couple married in Massachusetts and moved to Texas, would the federal government recognize them as married if they lived in a state that did not recognize them as being married?” Sprigg asked. “This is open to new rounds of litigation.”

What’s more, the high court has rewritten other laws, said Diaz.

“The federal Congress has passed thousands of laws with the traditional definition of marriage in mind,” Diaz said. “The Supreme court has rewritten those laws.”

mrc merch