The only reason that hasn't already happened now that the MASC has forced same sex marriage in that state is that no such case has even begun to work it's way through the courts. But eventually one will unless the Constitution is amended. When that happens, and it will, each and every state will have legally married homosexuals residing throughout the state and enjoying the same benefits as traditional married couples, even though their state constitutions may still define legal marriage as only consisting of one man and one woman.
The only sure way to keep homosexual marriage from spreading throughout the nation is for the people to force Congress to pass a defense of marriage amendment. If that happens the necessary 38 state legislatures will fall all over themselves in their rush to ratify it.
But I do agree with the writer on one critical point, it will be virtually impossible to persuade or coerce the necessary 67 Senators needed for a DOM amendment. IIRC we couldn't even get a bare 51 vote majority for it this year, nevermind the 67 vote supermajority that's required. Frankly, barring a radical change in the Senate makeup at some point I don't see any way for a state to deny to a same sex couple legally married in another state the same status and privileges enjoyed by conventional married couples. By that I mean a Senate makeup that would result in 67 votes for either a DOM amendment or an amendment repealing the FF&C clause. Someone please show me where I'm wrong, PLEASE.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled
,This Act may be cited as the `Marriage Protection Act of 2004'.
(a) In General- Chapter 99 of title 28, United States Code, is amended by adding at the end the following:
`No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.'.
(b) Amendments to the Table of Sections- The table of sections at the beginning of chapter 99 of title 28, United States Code, is amended by adding at the end the following new item:
`1632. Limitation on jurisdiction.'.
Passed the House of Representatives July 22, 2004.
Attest:
Clerk.
Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law is, 83 Geo. L. J. 373 (1994); Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993). Paulsen also argues for a form of departmentalism, i.e., that each branch of the federal government has co-equal power to interpret the Constitution independently, with no requirement of giving deference to another branch’s interpretation. Specifically, he states that if the Supreme Court renders a decision with which the President disagrees on constitutional grounds, the President is at liberty to refuse to enforce the judgment. G. Charles Warren, The Supreme Court in United States History 470-71 (1923).
The Avalon Project : President Jackson's Veto Message Regarding ...
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.