the hopeful chorus that the tide is turning seems ardent and is anarguably popular, indeed, poignant, outcome (whether or notcredibly constitutionally driven). Perhaps, in the wake of today'sblurry notion of evolving understanding, the result is ordained. Perhaps in a new established point of view, marriage will bereduced to contract law, and, by contract, anyone will be able toclaim marriage. Perhaps that is the next frontier, the next phaseof some "evolving understanding of equality," where what ismarriage will be explored. And as plaintiffs vigorously remind,there have been embattled times when the federal judiciary properlyinserted itself to correct a wrong in our society. But that is anincomplete answer to today's social issue. When a federal court isobliged to confront a constitutional struggle over what ismarriage, a singularly pivotal issue, the consequence of outcomes,intended or otherwise, seems an equally compelling part of theequation. It seems unjust to ignore. And so, inconvenientquestions persist. For example, must the states permit orrecognize a marriage between an aunt and niece? Aunt and nephew?Brother/brother? Father and child? May minors marry? Mustmarriage be limited to only two people? What about a transgenderspouse? Is such a union same-gender or male-female? All suchunions would undeniably be equally committed to love and caring forone another, just like the plaintiffs.
Plaintiffs' counsel was unable to answer such kinds ofquestions; the only hesitant response given was that such unionswould result in "significant societal harms" that the states couldindeed regulate. But not same-gender unions. This Court ispowerless to be indifferent to the unknown and possibly imprudentconsequences of such a decision. A decision for which thereremains the arena of democratic debate. Free and open and probingdebate. Indeed, fractious debate. The Court remains drawn to theforceful and prophetic circumspection expressed by Justice Powell,and turns the spotlight again not only on his dissent in Furman v.Georgia, 408 U.S. 238, 414 (1972), but also to Judge Kelly in hisdissent in the recent Tenth Circuit decision in Kitchen v. Herbert,No. 13-4178, 2014 U.S. App. LEXIS 11935 (10
Cir. June 25, 2014). Their words lead this Court today and ought not be slighted: