Conservative Attorney Not Hopeful With Supreme Court and Same-Sex Marriage

With a federal judge striking down the state constitutional amendment passed by voters in 2008 recognizing only traditional marriage in the Sunshine State, same-sex marriage is set to start in Florida on Tuesday. Conservative attorney John Stemberger of the Florida Family Policy Council has been fighting against same-sex marriage efforts and weighed in on the situation on Monday.

Insisting not much can be done currently, Stemberger emailed supporters offering his take on where things stand.

Our lawyers with Liberty Counsel have asked the judge's office assigned to the Orange County lawsuit for an emergency hearing, so it is possible, but unlikely, that any judge at this point would have the courage to do the right thing and rule in our favor to uphold the law, Stemberger wrote. The peer pressure within the Bar and judicial circles is quite heavy and few judges have the backbone to do what is legally and morally right on these issues. As C.S. Lewis said, We make men without chests, and expect from them virtue and enterprise.

Nor did Stemberger think the U.S. Supreme Court would prove any better, pointing to Justice Anthony Kennedy as the swing vote on the bench.

While it is not clear where Kennedy will come down on this issue, in Windsor, the last major SCOTUS marriage case, he used very hostile and frankly offensive language to describe people who have a traditional or natural view of marriage, Stemberger insisted. But he also took a states' rights position in that case, so it is possible that he could give the SCOTUS a majority vote for upholding Florida's marriage law. A states' rights decision would immediately reinvigorate the authority of Florida's marriage amendment. On the other hand, it is also possible Kennedy could find a new right to marry under the Equal Protection Clause, which would result in a Roe v. Wade-like marriage decision, which would block any further changes in the law for decades to come.

If SCOTUS did come out with a states' rights ruling then this would create a further confused patchwork of case law and precedent with three categories: legitimate marriages, same-sex marriages which are now in question because of the new decision under the newly authoritative marriage amendment, and then same-sex couples who want to be married and now cannot, Steberger added. But this is precisely the type of confusion the left wants.