Thoughts on the Same-Sex Marriage Case, Part I

“We let issues perk. We let racial segregation perk for 50 years.”
–Justice Sonia Sotomayor, March 26, 2013

Of all the comments made during oral arguments over Proposition 8, which bans same-sex marriage in California, these were the most interesting. Not only because Justice Sotomayor confused the word “perk” with “percolate” (she had to, because “perk” means to become more cheerful, something that racial segregation never did pull off), but because they seemed to reveal a certain hubris and an undeserved one at that.

The Court, she seemed to say, was more than just the final arbiter of the legal issues of the day. It was also an all-knowing sage who understood the big picture, and in which direction history was headed. This was a dubious proposition at best. And given Justice Sotomayor’s specific comments, it was full of irony as well.

You see, the Court did not simply allow racial segregation to “perk”. Rather, it found that racial segregation — “separate but equal” — was Constitutional in 1896, and then changed its mind in 1954. In 1896, the Court had one lone dissenter. In 1954, the decision was 9-0 in the opposite direction. In other words, 16 reasonable minds differed on whether segregation on the basis of race was Constitutional. To claim preternatural wisdom, and to use the example she did, was self-aggrandizement in the extreme. It was a little disingenuous, too.

Moreover, such paternalism was surprising, particularly in light of the Court’s ruling in the Obamacare case. In that decision, Chief Justice Roberts was very clear about the Court’s limited role. “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.” The Court even chided us for thinking otherwise. “It is not our job to protect the people from the consequences of their political choices.”

That is to say, the Court’s role is not to weigh in on which laws are good for us and which ones are not, but rather to weigh in on whether those laws, passed by our elected representatives, pass constitutional muster. That’s it.

Against this backdrop, Justice Alito’s comments were as surprising as Justice Sotomayor’s: “You want us to step in and render a decision based on an assessment of the effects of [same-sex marriage,] which is newer than cell phones or the internet?”

Counsel’s response to this question left much to be desired. Rather than a respectful reminder that making such policy judgments was not their prerogative, nor within their field of expertise—which would have echoed the Chief Justice’s observation about the Court’s proper role—he pointed out that the Court has previously recognized the unacceptable cost of the “wait-and-see” approach. Perhaps he did so in order to avoid a discussion about the role of the Court in general? In any case, it would have made little difference.

Whether the Court was boasting about its alleged patience and wisdom, or whether the Court has done an about-face with regard to what it understands as its role, the only clear message was that the Court regretted taking this case.

The thing is, this was not the case the Court thought it was. It couldn’t have been. For even if the Court had prejudged the issue, and was prepared to make a pronouncement one way or the other about the law of the land with regard to the definition of marriage, this case had too many factual, legal, and procedural pitfalls to make a sweeping ruling. Having realized this, too late it would seem, oral arguments gave the Justices a chance to show off a little, but not much more; and the Court’s comments should be interpreted as little more than harbingers of a decision that will decide nothing at all.

If you were hoping for another Brown v. Board of Education, then you will be disappointed. The opportunity for the Court to do something historic or momentous just isn’t there. Not with this case.

There’s another one working its way through the system right now, however. So, perk up!

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