The Wall Street Journal recently published an opinion piece titled "The Constitution and Same-Sex Marriage" by Michael McConnell, a former federal judge. McConnell’s contention is that the two cases regarding the constitutionality of Proposition 8 and the Defense of Marriage Act that will be heard by the Supreme Court this week are not just about gay marriage; "They are about how we reach decisions regarding matters of deep moral significance in our federal republic."
The author points out, in Roe v. Wade, the Court "endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution." When the justices become involved in situations that are currently being argued, "... they look like they are acting like legislators."
According to McConnell, such is the case with same-sex marriages. Nine states have granted the right of marriage to LGBT Americans, while others have endorsed traditional unions. It is difficult for those supporting either side to deal with the diametrically diverse range of commentary that arises when so many have different opinions. The public can sometimes be overwhelmed with minutia. Involvement of the highest court results in even greater anxiety, as a plethora of differing lower court rulings must be considered.
The point is that the legislative process is one in which all Americans indirectly participate in making decisions, and it is easier for them to accept the results "than when unelected judges make moral pronouncements from the bench."
A corollary issue is that legislatures are able to accommodate protections for Americans and organizations that "conscientiously disagree," such as churches in the case of same-sex marriage. "Civil harmony" is better maintained by such actions. Judicial decisions are much less likely to address this potential for great future conflict.
Hence, the cases to be considered this week are potentially very dangerous. If Proposition 8, which provides that "only marriage between a woman and a man is valid or recognized" is struck down, SCOTUS would be deciding for the whole nation that same-sex marriage is the law of the land. It would also be "branding" the views of the other side as either "irrational" or "bigoted."
On the other hand, if SCOTUS decides that there is no constitutional right to same sex marriage, a huge societal issue would be swept aside, and homosexual relationships would forever be considered "inferior to" traditional unions. Moreover, the political redress of those in favor of same-sex marriage would be precluded in a rather dramatic fashion.
If the court approached the issue by addressing specific aspects of the existing situation, it may be able to achieve an end (same-sex marriage yes or no) without precluding future political actions. For instance, if the court decided in Prop 8 deliberations that the proponents of the law did not have standing to sue for the enactment of Prop 8, the law could be struck down. Essentially, if a proponent only has a political interest, and no legal stake, he has no "standing." By doing so, the court could strike down Prop 8, leaving the original district court order that permitted same-sex marriage in force. In fact, a former solicitor general has filed a friend of the court brief in this regard.
In the case of the Defense of Marriage Act, the Court could decide, "the government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a [same-sex] couple resides."
By taking these actions, SCOTUS would allow same-sex marriage in California and all the other states that have made it legal. Yet, a decision about whether same-sex marriage is constitutional would be thrown back to the states where precedent says it belongs.
Personally, I am not convinced this is the best route for SCOTUS or the country. Same-sex marriage is an issue that is near and dear to many Americans who are demanding the right to marry. Moreover, denying same-sex marriage any longer is a direct affront against the rights of gay couples to enjoy the same benefits of those in traditional relationships. I think SCOTUS should refuse to punt the ball back to the states. Rather, I hope the Court takes action that legitimatizes the rights of gay Americans.