As the Supreme Court hears arguments this week on gay marriage, the most interesting questions may go to the roles of state vs. federal legislatures in reflecting changing opinion on social policy.
The two cases the justices have chosen to deliberate come at the federalism question from two angles. Tuesday, they will take up the challenge to California’s Proposition 8, which provides an opportunity to declare that marriage is fundamental right, one that neither states nor the federal government may deny to same-sex couples.
The next day, the Court will hear the challenge to the Defense of Marriage Act, which denies more than 1,000 benefits under federal law to same-sex couples married under state law.
Massachusetts and the other states challenging DOMA could win, with the court throwing out its federal definition of marriage. But a high court vote that leaves the question to the states will fall short of the nationwide legalization of same-sex marriage rights.
Two precedents hover over the cases, both involving issues where states were divided, but public opinions on a social issue were changing. One is Loving v. Virginia, in which the court said states could not prohibit inter-racial marriage. That established a federal role in marriage law and, while public opinion was trending in favor of legal inter-racial marriage, most Americans still opposed such marriages.
The other is Roe v. Wade. There’s a good argument to be made that, by imposing a national policy in an area where public opinion was evolving, the court short-circuited political debates at the state level, sparking resentment over “unelected judges making law” that persists today.
One surprising voice voicing these sentiments is Justice Ruth Bader Ginsburg, a liberal who made her career expanding women’s rights. Ginsburg, The New York Times reports, spoke with law students last year about Roe, saying “It’s not that the judgment was wrong, but it moved too far, too fast.”
That might be an argument for letting the argument about same-sex marriage play out in the states.
David Boies, lead lawyer challenging Prop. 8, draws a different distinction. In Roe, he said on Meet The Press, the court was discovering a new, fundamental right, while marriage already has that status. As with Loving v. Virginia, the court’s job is to extend that right to all Americans, no matter whom they choose to marry. Just as the Loving decision was quickly accepted by the public, so would an affirmation of equal marriage rights.
But just as Ginsburg worries about getting too far ahead of history, Chief Justice John Roberts may worry about falling too far behind. Roberts is known to be especially sensitive to the court’s image. He’s relatively young and expects to preside over the court for a long time. He also knows public opinion is changing rapidly on gay marriage, and attempts to freeze transient opinion into law can be fruitless and destructive.
The preferences of Ginsburg and Roberts may point to a narrowly-tailored decision. That won’t come until June, and there’s much to argue about in the meantime.