The Supreme Court's political option on gay marriage

But even if they decide to strike down DOMA, there could be a way to finesse the issue. The justices could rule that on federalist grounds, the federal government doesn’t have the ability to interfere with state laws regarding gay marriage.

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The overarching signal would be that the court isn’t going to interfere if states want to define marriage as between a man and a woman, but it won’t allow the federal government to define it as such at the federal level, thus undermining those states that have chosen to recognize same-sex marriage.

And as long as the Supreme Court doesn’t overturn a separate provision of DOMA, states that have defined marriage as between a man and a woman won’t have to recognize out-of-state gay marriages.

This approach could be seen as a way of preventing another outcome like Roe v. Wade, in which the Supreme Court created a constitutional right to abortion and short-circuited states’ ability to craft their own abortion laws.

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