All across the Sunday shows, the discussion raged yesterday on the gay marriage cases going to the Supreme Court. I have gotten out of the Supreme Court prediction business, so I won’t hazard a guess about the outcome, as many panelists and guests did. Nevertheless, the Sunday conversations suggested a few things about current opinion and the Supreme Court’s role in hot-button social issues.
Both Chris Wallace on “Fox News Sunday” and Jan Crawford on “Face the Nation” referred to Justice Ruth Bader Ginsburg’s observation that the court got too far ahead of public opinion in Roe v. Wade, and that it would have been better to let the issue get wrangled out in the legislative process. Legal advocates respond that marriage is a “fundamental right” and therefore it is appropriate for the court to remove the issue from the political realm. This, of course, underscores the question of what “marriage” is and whether the language of the 14th Amendment can be said to extend to same-sex couples.
What is clear is the dichotomy between the rising wave of current opinion in favor of gay marriage and the actual status of gay marriage in the states; only nine states have approved same-sex marriage. This may suggest that it is premature to supplant a political consensus that is just forming.
We have seen over the past decade that, beyond social conservatives, who are largely motivated by faith, the stock arguments in favor of banning gay marriage have been insufficient to rebut arguments about fairness and inclusiveness.
When conservatives appeal to religious strictures and to authority (e.g. the way marriage has been defined for millenniums), they don’t fare well in an ever-more secular society and one in which marriage is looked upon increasingly as a means of self-fulfillment rather than economic necessity or religious edict. The argument that homosexual marriage “harms” heterosexual marriage has not been found compelling for many Americans, and certainly not for younger people.
As I said, I can’t fathom what the court will do. It was interesting that a number of observers sympathetic to gay marriage thought the court would not rule so broadly as to require all states to recognize same-sex marriage.
Both sides appeal to the implications of the 14th Amendment, although the sides argue for a different balance between majority rule and protection for minority rights. Despite strong differences of opinion on the Sunday programs, I was struck by how civil the debate was, more so than one often gets from lawmakers. The discussion about the nature of marriage, the pace of social change, the role of the court, federalism and the 14th Amendment — not unlike the Obamacare debate — is a healthy and instructive one for the country. There is nothing so endearing as an entire nation debating these monumental issues; only in America, where the civic religion is constitutionalism, can you witness this phenomenon.
Chief Justice John Roberts apparently now fancies himself as the PR executive for the court’s historic reputation. But if one thing came out of the Obamacare decision, it is that the court loses confidence when it is seen to be gaming the outcome rather than, as Roberts said in his own confirmation hearing, embodying the role of an impartial umpire. The metamorphosis in public opinion has been dramatic and, from my vantage point, heartening. It would be tragic to see that process short-circuited by an edict from the court that, for example, doesn’t embody the sort of legislative compromises that have helped gay marriage measures pass (e.g. generous protections for religious liberty).
To my mind, DOMA unwisely aggrandized federal power in the realm of marriage to the federal government (by opposing same-sex marriage); it would seem unwise for the court to swing 180 degrees to aggrandize power for an opposite result (mandating same-sex marriage).