About a month ago the United States Supreme Court heard oral arguments in the same-sex marriage cases. These pose the questions whether the U.S. Constitution requires the recognition of same-sex marriage: either directly because the Fourteenth Amendment, ratified in 1868 (almost 150 years ago), so modifies state marriage law, regardless of what the state's law and constitution say; or indirectly because the Full Faith and Credit clause of Article IV, section 1, ratified along with the original Constitution in 1789 (more than 225 years ago), requires states to recognize any other state's same-sex marriages. The Court will issue its judgment in another month or so, by the end of this year's term at the end of June.
While I am not a prophet, nor do I possess inside knowledge (or a crystal ball for that matter), I think one thing can reasonably be said for certain. It is that whatever the decision the Supreme Court reaches, it will not be unanimous. But the decision, in order to be truly convincing and authoritative as interpreting the Constitution, should be unanimous. (Note that I do not say that a non-unanimous decision would not be legally binding, at least as regards the parties to the lawsuits.)
The likelihood is that the decision will decree, by a narrow 5-4 majority, that the Constitution requires the recognition of same-sex marriage. This will mean that one judge is deciding this issue for the entire country, probably Justice Kennedy. Now however wise this man is, I do not think that the decision should rest on his shoulders. And, of course, it will further undermine the Court's authority, which depends in large part on its not being perceived as overtly political -- that is simply saying what the Constitution means. A recent book note in the current May issue of the Harvard Law Review describes a recent book by Prof. Garrett Epps which "reveal(s) that justice in the nation's highest court has ultimately become 'red and blue,' where, 'for perhaps the first time ever,' party identity appears to be the foremost determinant of how the Justices vote." But if that is true, why should the peculiarly insulated politics on the Court decide the issue?
If same-sex marriage is nationalized by a narrow margin, it will be eerily like what happened here in Massachusetts 11 years ago, when a 4-3 decision of our state Supreme Judicial Court ushered in judicially-decreed same-sex marriage in the commonwealth.
Since then, of course, a number of states have done likewise, sometimes at the behest of their supreme courts or the federal judiciary, and sometimes as a result of legislative enactment through the democratic process. I must admit that I find the latter a more palatable and acceptable way of going about it, as the democratic process does not necessitate stretching the constitution's language to address issues the constitution was never meant to decide.
Thus, my modest proposal: that the Court exercise judicial restraint by not addressing constitutional issues unless they can do so unanimously, like they did 61 years ago in the landmark case of Brown v. Board of Education, which declared unanimously that segregation in the public schools is unconstitutional.
Such a prudential rule would have avoided the Court's greatest constitutional bloopers of all time, all of which involved dissents: Dred Scott, the Lochner decision which declared maximum-hour legislation unconstitutional, Plessy v. Ferguson, Roe v. Wade, even Bush v. Gore and the Citizens United case.
The problem is that if the Supreme Court gets a constitutional issue wrong, then there is virtually no recourse short of waiting for judges to retire, die, or change their minds. Impeachment is a paper tiger, and the difficulty of constitutional amendment, requiring repeated supermajorities, is not a practical remedy.
This is obviously different from when the Court errs in interpreting ordinary statutory law, because then Congress, the democratically elected and responsive legislature, can amend the law or pass a new one. They cannot do that to overturn a constitutional decision. Thus, last term's 5-4 Hobby Lobby decision on the contraceptive mandate under Obamacare violating the Religious Freedom Restoration Act would still be legitimate, at least until such time as Congress amended the law.
As Abraham Lincoln said of the Dred Scott decision: "The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
I'm just saying.
DWIGHT G. DUNCAN IS PROFESSOR AT UMASS SCHOOL OF LAW DARTMOUTH. HE HOLDS DEGREES IN BOTH CIVIL AND CANON LAW.
Dwight G. Duncan is professor at UMass School of Law Dartmouth. He holds degrees in both civil and canon law.
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