Supreme Court decisions occasionally pose tricky problems of interpretation for lower courts, and last year’s Windsor decision on same-sex marriage was one of them. What, exactly, was Justice Anthony Kennedy saying in that case? He never said that the country had adopted same-sex marriage as a mandatory policy when it ratified the Fourteenth Amendment in 1868. He did not quite say that the Defense of Marriage Act violated principles of federalism. What was clear is that Kennedy thought that the act was mean and wanted it gone.
Cautious lower courts, applying the decision, would go no further than Kennedy. They would not require any state to recognize same-sex marriages, as the justice did not. But instead, federal courts have generally taken the real instruction of Windsor to be: Go as far and as fast as you feel like going in advancing the cause of same-sex marriage, and feel no need to work up a sweat coming up with a convincing legal rationale.
It is an invitation that many federal judges are taking. This week two of them, in Oregon and Pennsylvania, have ruled that those states must offer marriage licenses to same-sex couples in decisions that barely feign to be reading the law. The Oregonian concludes: “Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other . . . and rise.” Consider that an authoritative interpretation of the bad-metaphor clause of the Constitution. The Pennsylvanian finishes by taking a swipe at the citizens who enacted the law he is rewriting: “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”
When History is on your side, who needs legal impartiality, or even an argument? One theory holds that these judges are taking part in a competition to see who can be the most over-the-top endorser of same-sex marriage, in the expectation that the future will see them, bad prose and all, as heroes of justice. If so, it will be a contemptible future.