Seawytch, you're group is going to come up against this rationale in the final Hearing:
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"Any other reading of
Windsor
would require us to subtract key passages from the opinion and add an inverted holding. The Court noted that New York “without doubt” had the power under its traditional authority over marriage to extend the definition of marriage to include gay couples and that Congress had no power to enact “unusual” legislation that interfered with the States’ long-held authority to define marriage.
Windsor
, 133 S. Ct. at 2692–93.
A decision premised on heightened scrutiny under the Fourteenth Amendment that redefined marriage nationally to include same-sex couples not only would divest the States of their traditional authority over this issue, but it also would authorize Congress to do something no one would have thought possible a few years ago—to use its Section 5 enforcement powers to add new definitions and extensions of marriage rights in the years ahead....
...
Why, it is worth asking, the sudden change in public opinion? If there is one thing that seems to challenge hearts and minds, even souls, on this issue, it is the transition from the abstract to the concrete.
If twenty-five percent of the population knew someone who was openly gay in 1985, and seventy-five percent knew the same in 2000, Klarman,
supra, at 197,
it is fair to wonder how few individuals still have not been forced to think about the matter through the lens of a gay friend or family member.
That would be a discrete and insular minority...
...
the marriage laws do not violate the Constitution.
A principled jurisprudence of constitutional evolution turns on evolution in
society’s values, not evolution in judges’ values. Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way. Lawrence, by contrast, dealt with a situation in which just thirteen States continued to prohibit sodomy, and even then most of those laws had fallen into desuetude, rarely being enforced at all.
On this record, what right do we have to say that societal values, as opposed to judicial values, have evolved toward agreement in favor of same-sex marriage?
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Sutton's point was that if so many people know a family member or friend who is gay...increasing from 25% in 1985 to 75% today.. (coming out vs trend?), why can't their judgment as such a majority now be trusted in state by state regulating on the topic of so-called gay marriage? His argument is that if a majority of people approve of gay marriage, why is the LGBT community trying to keep it off the ballots in states?
He notes an alarming case here:
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"In other States, the people seemed primed to do the same but for now have opted to take a wait-and-see approach of their own as federal litigation proceeds.
See, e.g., Wesley Lowery,
Same-Sex Marriage Is Gaining Momentum, but Some Advocates Don’t Want It on the Ballot in Ohio, Wash. Post (June 14, 2014),
Same-sex marriage is gaining momentum but some advocates don t want it on the ballot in Ohio - The Washington Post (explaining that Ohio same-sex marriage advocates opted not to place the question on the 2014 state ballot despite collecting nearly twice the number of required signatures). What the Court recently said about another statewide initiative that people care passionately about applies with equal vigor here: “
Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.”
