Monte Neil Stewart, the attorney defending Nevada’s ban on same-sex marriage, is making a truly breathtaking argument based on the Supreme Court’s ruling in Greece v Galloway. In a letter to the 9th Circuit Court of Appeals, he says that that ruling on prayer applies to same-sex marriage as well for this astonishing reason:
In upholding the town’s practice of beginning town council meetings with prayer, the Court made several statements indicating that the First Amendment’s Establishment Clause, made applicable to the States through the Fourteenth Amendment, should not be interpreted in a way that renders invalid a practice — like prayer in public meetings — that was well established at the time the First and Fourteenth Amendments were adopted…
So too here: Any “test the Court adopts” for determining Fourteenth Amendment limitations on a State’s authority to define marriage ought likewise respect “a practice” — namely, the man-woman definition of marriage — that was
universally “accepted by the Framers” of the Fourteenth Amendment.
This is really quite an audacious argument, for several reasons. First, because he is quoting Justice Kennedy, who also authored the Windsor decision that was used to strike down the law in question in this case. Is it really reasonable to believe that Kennedy himself would apply the Greece ruling in the manner Stewart suggests? Not a chance in hell.
More importantly, the implications of this are extraordinarily bad. By Stewart’s reasoning, Loving v Virginia would have been wrongly decided too because the framers of the 14th Amendment were very clear that they did not intend it to apply to laws banning interracial marriage. Brown v Board of Education would be gone too, since segregation was absolutely a practice that was universally accepted by the framers of the 14th Amendment. His argument would render the 14th Amendment’s equal protection clause virtually meaningless.