Ruminations, January 13, 2013
The Supreme Court will not support gay marriage – and it won’t oppose it either
***“It’s not that the judgment was wrong,” said Supreme Court Justice Ruth Bader Ginsburg speaking on Roe v. Wade, “but [the Court] moved too far too fast.” It was a mistake that the Supremes will not make again when it comes to gay marriage.
There are parallels between Court decisions taken in the abstract even when specifics are widely different. And those abstracts can befuddle the Court.
Beginning in 1954 with the Brown v. Board of Education decision, the Court ruled on a spate of civil rights cases stemming from slavery in our history. Many of these decisions involved local schools, marriage and intra-state commerce – areas that the court had typically left to the states in the past. The problem, as the Court correctly saw it in Brown, was that although progress was being made (e.g., integration of the armed forces in 1948) it was entirely too slow. It had been almost 100 years since the slavery issue had ripped the nation apart and unless civil rights were established soon, the lack thereof would continue to have a deleterious effect on the nation.
Perhaps it was hubris but after the Court began moving on civil rights, it then began to violate some of its precepts in other areas and made unprecedented decisions involving the right to privacy (1965), effectively struck down capital punishment (1972) and then in Roe v. Wade struck down abortion in 1973.
What the Court seemed to forget was that when politics could decide an issue, they would normally let politics decide it. They violated that precept in Roe v. Wade.
The impetus for Roe began in the early 1960s when it was discovered that the drug thalidomide, often prescribed as a tranquilizer for pregnant women, could lead to severe deformity in their children. In 1962, an Arizona woman, Sherri Finkbine – who had taken thalidomide, petitioned the state for an abortion. When she was refused, she flew to Sweden to obtain one. This incident helped promote legal abortion as a political issue – a state issue. By 1973, abortion was legal, in varying degree, in twenty states. In many other states, the legislatures were considering doing the same. It was being resolved politically, but the Supreme Court, instead of letting this continue to happen state by state, decided to intervene and thus introduced 40 years of bitterness and controversy.
And so it is with gay marriage. In the last nine years, gay marriage has become legal in nine states and the District of Columbia. It seems, if Justice Ginsburg’s reflections are an indication, that the Supreme Court will let politics decide the issue in Congress and the states. Congress can easily repeal the Defense of Marriage Act (DOMA) if it so chooses. State by state the trend seems to be that more states will legalized gay marriages.
It would be consistent with the Court’s precept of letting politics decide. The reasons that the current Court is reviewing these decisions at all is because district courts have issued conflicting opinions on DOMA and a district court has overruled the state of California’s constitutional ban on gay marriage.
But sometimes, as noted above, the Court, for whatever reason, violates its own precepts.
Quote without comment
Justice Ruth Bader Ginsburg, speaking on Roe v. Wade at Columbia University, February 12, 2012: "The court made a decision that made every abortion law in the country invalid, even the most liberal. We'll never know whether I'm right or wrong ... things might have turned out differently if the court had been more restrained."