I just finished reading my partner Aaron Weems’ analysis on last week’s ruling by the U.S. Supreme Court that gay marriage is an institution meriting the respect of all fifty American states and not merely those which had endorsed the concept through referendum, legislative action or judicial fiat.
I use the word “fiat” with some measure because this was the basis for the dissenting opinions of Justices Scalia, Roberts, Thomas and Alito. Unfortunately, the focus in the press has been on some of the intemperate language used in the dissenting opinions to take on the majority for declaring itself a kind of super legislature empowered to decide what society should approve and what it should not. I write to say I find merit in this view and thought it best summarized in Justice Roberts’ comment that while advocates of gay marriage had reason to celebrate the ruling, defenders of the right of the people to speak through majority rule are shortchanged whenever the Courts decide that the legislature is not the final “say”.
I like that view but I must confess I like it in the abstract. As I read the dissents I kept thinking about the 1954 decision in Brown v. Board of Education of Topeka Kansas. In that case a unanimous Supreme Court ruled that the doctrine of separate but equal education of black Americans violated the clause of the 14th amendment declaring that all citizens of the United States are entitled to equal protection of the laws. The Plaintiff’s in Brown effectively demonstrated that after 58 years, separate rarely if ever produced equal in public education, a fact perhaps most convincingly chronicled in Richard Kluger’s definitive history published in 1977, Simple Justice. In 1954 there was an outcry that the Supreme Court had hijacked not only states rights but legislative democracy. This contention is echoed in the dissenting opinions of Obergefell. As a student of history, I am convinced that had the Brown court not pushed this change, the civil rights movement would have been a 100 year odyssey, if it had occurred at all.
Having contradicted my own argument, I hasten to recall some of the great questions posed during the argument of the Obergefell case earlier this year. The question during argument that still resonates for me is whether courts have the right to abrogate polygamous marriages. If the right to marry who you wish is a civil right, is there a reason why that right can be limited to only one person?
In the end, the point of examining the dissenting opinions is to better understand our tolerance for permitting courts to legislate sensitive issues like the one decided last week. We have all seen, in recent years, that as the legislative branch eschews any controversy, more and more pressure is being applied to the judicial branch to decide issues like abortion, gun rights and legislative apportionment. In one sense it can seem easy to accept rulings that decide things for us. As Jason Sokol argues in his 2006 book, There Goes My Everything; White Southerners in the Age of Civil Rights after a rush to create separate private schools in the wake of Brown southern whites just as quickly abandoned that system and began to accept that change was inevitable. But even though we might consider that result “right” there are elements of it that are inherently antidemocratic. Recall Elizabeth Willing Powell’s question to Franklin at the close of the Constitutional Convention of 1787. Asked what form of government the convention had adopted Franklin replied: “A republic, if you can keep it.”