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Another Epic Battle in the American Culture Wars?

By Phil Lawler (bio - articles - email) | Aug 03, 2009

Writing in the Wall Street Journal, Princeton's Robert George alerts us to the danger that the US Supreme Court could leap into the political debate on legal recognition of same-sex marriage. There is, unfortunately, a precedent for that sort of judicial activism: the Court's infamous Roe v. Wade decision. That decision was a disaster from every perspective, George points out, not least because it made it impossible for the American people to resolve a contentious issue through the normal political process:

By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics.

It's no exaggeration to say that Roe shook the foundations of American democracy. Thus far our republican system of government has withstood the storm but could it survive another such blow?

Could it happen again? Absolutely. Challenges to traditional marriage are already percolating through the federal court system. The Commonwealth of Massachusetts has taken the lead (again), filing suit against the federal Defense of Marriage Act, claiming that the statute is an offense against states' rights.

Ordinarily the Solicitor General is expected to defend federal laws against such challenges. But the Solicitor General works for President Obama, who has signaled that he does not wish to defend laws that restrict same-sex marriage. So the issue could soon come before the Supreme Court, and the case for traditional marriage may not be made with the vigor we might wish.

The second major battle in the American culture wars-- a battle every bit as dangerous and divisive as the abortion issue-- may be closer than we realize.

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