But the court’s first full examination of whether the right to marry must be extended to same-sex couples puts on full display the justices’ official responsibility as arbiter of the Constitution, as well as its unofficial role as interpreter of the nation’s readiness for social change.
Proponents of same-sex marriage say conditions could not be better for the issue to reach the nation’s highest court.
“Everything seems to be breaking in support of marriage equality,” said Theodore J. Boutrous, an attorney for two California couples challenging that state’s ban on gay marriage.
He points to the growing number of states that now authorize same-sex marriage, the shifting stances of the nation’s political leaders and polls that show a majority of Americans now favor a concept of marriage that did not exist anywhere in the world until 2000.
“I think the direction of the country is clear,” Boutrous said.
Other supporters worry about asking the Supreme Court to do too much too quickly. Some in particular are nervous about recent comments from Justice Anthony M. Kennedy, who wrote the court’s two most important rulings in favor of gay rights and who will almost certainly be crucial in the coming marriage cases.
Kennedy told a questioner he did not find it ideal that the court was recently at the center of so many important questions on social issues and civil rights.
“A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said.
Indeed, the low-key court briefs filed by those opposing same-sex marriage seem to go out of their way to acknowledge the political victories of same-sex marriage proponents and the country’s rapidly changing mood on the issue. But they are cited as reasons that the court’s intervention is unneeded.
“With an issue as fast-moving and divisive as same-sex marriage, the advantages of the political process are substantial,” wrote Paul D. Clement, who is representing Republican House leaders in their defense of Congress’s 1996 decision to deny federal recognition of same-sex marriages performed in the states where they are legal.
Charles J. Cooper, who represents proponents of Proposition 8, which added the same-sex marriage ban to California’s constitution in 2008, agreed in his brief to the court that persuasion and compromise in the political arena are preferable to a judicial solution.
“Decisions reached through this process are more likely to be regarded by a free people as legitimate and be widely accepted than decisions reached in any other manner,” he wrote.