What does the judicial battle over the death penalty have to do with establishing the legal permissibility of same-sex marriages?
Capital punishment opponents have consistently tried to convince the courts that the death penalty violates our constitutional ban against the imposition of cruel and unusual punishment. The death penalty has withstood challenge primarily because courts have refused to change, or enlarge, the traditional definition of “cruel and unusual punishment.”
In a legally identical manner, same-sex marriage advocates are fundamentally engaged in a battle over definitions. Same-sex marriages have not been permitted in this country because marriage has traditionally been defined as a union between a man and a woman.
The Supreme Court’s cruel and unusual capital punishment decisions have allowed individual states to impose or ban the death penalty as they deemed appropriate. If the Supreme Court is willing to allow such a stark difference between the states concerning something so dramatic as taking a human life, then it is clear that each state should be allowed to independently define marriage in a manner which is free from federal judicial interference.
Since the Supreme Court has legitimized a national death penalty dichotomy among the states and is unwilling to abolish the death penalty substantially because the imposition of the death penalty does not violate the time-honored definition of cruel and unusual punishment, individual states must also be allowed to continue to define marriage in a manner that upholds marital relationships that only join men and women.