The U.S. Supreme Court began its newest term by generating political waves this past week, as the Justices declined to hear the appeals of five states protesting the reversals of their same-sex marriage bans. As a result of this rejection, the circuit court decisions stand and gay couples can now marry in Indiana, Oklahoma, Utah, Virginia, and Wisconsin. In the week since the Court’s actions, federal judges in Idaho, Nevada, and North Carolina have also overturned those states’ bans, making same-sex marriage legal in a total of 27 states. Many have also speculated that the Supreme Court’s behavior may lead to 4 additional states (WV, SC, WY, and KS) having their marriage laws struck down.
Once word got out, proponents of same-sex marriage in the media eagerly touted the Court’s decision as a “tacit win to gay marriage,” while others interpreted it as an unspoken pledge by the Court to refrain from intervening in the issue at all. Before we let the rainbow flags fly in triumphant celebration, however, we must make sense of the Court’s action.
Observers of the Supreme Court understand that although the founders designed the Court (and all other courts, really) to act as objective judicators–perpetually isolated from the influences of public pressure and popular opinion–politics inevitably weaves its way into the Court’s legal decisions. Indeed, throughout the twentieth century the Court engaged in a considerable amount of policymaking, evident in a multitude of controversial and landmark rulings. Some, like Brown v. Board of Education and Loving v. Virginia, were undoubtedly beneficial, promoting equal rights and advancing the Civil Rights Movement. Other decisions, however, weren’t as favorable: the Court’s attempt to eradicate the death penalty in Furman v. Georgia, for example, was met with significant resistance from nearly all states, and the abortion rights established after Roe v. Wade are still hotly contested today.
But no matter the issue at hand, the Court has always acted in a clear, strategic way in its attempt to shape policy. Whether they sought to expand the rights of the criminally accused or to ensure the legality of birth control, the Justices have generally waited for the right case to come along at the right time–especially when public opinion would facilitate the implementation of a controversial policy decision. One could argue that the Supreme Court’s refusal to hear the states’ appeals this week was not an intentional or implicit victory for same-sex marriage, but rather an instance in which the Court decided to repeat its history and wait for a more appropriate case at a time better-suited for their agenda.
Some media pundits have speculated about the motivations both liberal and conservative members of the Court had for their rejection of the case. Most expected the Justices to take up the case: for the conservative members of the Court, granting the cert would have provided states with the opportunity to reinstate their bans, while for the liberals, the case could have produced nationwide legalization. As analyst Howard Kurtz posits, however, conservative Justices may have feared the more moderate Kennedy would have joined with the liberals to enable “a sweeping ruling in favor of gay marriage.” The liberal Justices, on the other hand, may have refrained from seizing on the case in order to prevent “[imposing] a definitive ruling on the country.” Indeed, as previously mentioned, it wasn’t so long ago when liberal activists on the Court ruled abortion legal when half the country did not (and still doesn’t) support it.
Despite the prevailing assumption, attitudes towards same-sex marriage represent a comparable situation. Yes, it’s true that in the wake of the Supreme Court’s action this week, gays and lesbians can now get married in just over half of the states in the Union. However, those tripping over themselves to declare the debate ended must contend with the reality that of the 27 states now permitting gay marriage, only 11 actually arrived there through voter-approved legislation. The remaining states had their voter-supported bans reversed by state court decisions or–more commonly–by rulings from (liberal) federal district court judges. It’s also worth noting that these states have generally stopped fighting the legal system not because they’ve suddenly changed their minds on the issue, but because they recognize that liberal judges won’t rule in their favor and the prolonged legal battle would only result in a loss of resources. So while the law might change, public opinion in these states likely does not. Indeed, although nationwide public approval has undoubtedly increased in unprecedented fashion, polling data from the past couple years reports that approval for gay marriage consistently hovers around 50-55%. The fact that about half the country still opposes legalization does not support the argument that the issue is soon to be “settled.”
Will the Supreme Court rule on gay marriage at some point? Currently, the same-sex marriage situation is a confusing one, as gay couples legally married in one state may have their marriages invalidated in another. Obviously, this system gives birth to a plethora of legal and practical issues, which will persist unless (1) the remaining states pass legislation to legalize gay marriage, (2) Congress votes in favor of national legalization, or (3) the Supreme Court inserts itself to resolve the issues. Considering that many states and Congressmen still favor banning same-sex unions, the first two options are unlikely, leaving the nation’s highest court as the most plausible vehicle for a nationwide solution.
But if a case should make it to the Court, should the Justices rule in favor of gay marriage?
Although many liberals would rejoice at a sweeping Supreme Court decision mandating gay marriage as the law of the land, such a ruling could actually impact the movement in a negative way. Principles of American federalism unquestionably dictate that state legislation–not court rulings with arbitrary legal reasoning–should serve as the mechanism for redefining a preeminent societal institution like marriage. Currently, less than half of the states with legalization achieved gay marriage through the proper democratic process; the majority have already experienced a federal court prematurely enforcing “marriage equality” when most of the state’s population disapproved. If the Supreme Court were to do the same at the national level, states with strong majorities opposed to gay marriage would likely push back against the ruling with full force.
However, it’s clear that most federal courts have decided that these federalist ideals are substantially less compelling than their shoddy legal interpretation. As I’ve explained before, the right to gay marriage does not constitute a “fundamental right,” as many judges have alleged in their rulings. Such a right must be “deeply-rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “liberty nor justice” would exist without it. Indeed, Judge Martin Feldman of Louisiana–the first federal judge to uphold a ban and break the legal winning streak of gay marriage proponents–agrees in his opinion that “public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental.”
Ten years ago, it would have been almost inconceivable for a judge to get away with a ruling in favor of same-sex marriage using the exact same legal reasoning the courts do today. The fact that so many judges are now hopping on the “marriage equality” bandwagon perfectly illustrates the impact public opinion can have on an institution that’s supposed to interpret and enforce the law objectively. Indeed, the dramatic increase in support among the federal judiciary clearly correlates with the significant strides the movement has made in garnering support and sympathy throughout the last decade. (Although I suspect the tendency of gay marriage supporters to immediately label their opposition “bigoted,” “hateful,” and “homophobic” may also have had something to do with this transition.)
But alas, the federal courts have spoken and the marriage licenses have been issued. At this point, it’s quite unlikely any state or federal court will act to revoke these marriages within their jurisdictions. Thus, assuming problems arise from the current system and the states remain divided, the Court may soon be faced with another opportune case that might enable a nationwide ruling. And given the record of the lower federal courts, it’s only rational to expect the Supreme Court to employ a similar legal analysis to produce a sweeping decision mandating the legalization of same-sex marriage.
Even if the Supreme Court does deal the final legal blow to the opposition some day soon, the issue won’t be resolved “for good,” as many seem to believe. Ultimately, the only way such dramatic social change can succeed is for the movement to build legitimacy entirely on its own, without the crutches provided by the liberal courts. As American history has repeatedly shown, meaningful debate in the democratic process is the best way to truly change hearts and minds; and with gay marriage–no matter what the courts say–it is no different.