Bench Memos

Excellent WSJ House Editorial on the Marriage Cases

I’m very pleased to see that the Wall Street Journal editorial board didn’t follow Michael McConnell’s regrettable wrong turns. Instead, it has issued an excellent house editorial (with only a couple of minor false notes) calling on the Supreme Court to rule that both California’s Proposition 8 and the federal Defense of Marriage Act are constitutionally permissible. Some excerpts:

If the Supreme Court now reads a right to gay marriage into the Constitution and imposes that definition on all states, it won’t settle the debates Americans are conducting. It will inflame them and ensure they never end, prematurely aborting the give-and-take on contentious moral and social issues the Constitution is designed to encourage. Five Justices—or fewer, if they split into pluralities—could further polarize the body politic and make compromise more difficult.…

The Court has not used the equal protection clause to create a new category of people who need extra legal defenses in three decades, largely because doing so disrupts the ebb and flow of the ordinary political process. Such caution is prudent, especially here. Homosexuals are not disenfranchised like blacks in the mid-20th century, as the very progress of the gay rights movement shows.…

The Court ought to conclude on the merits that marriage as historically understood does have a “rational basis.” This version of the equal protection test properly defers to the deliberative judgment of voters and their elected representatives. Traditional marriage laws may support legitimate goals like promoting intact, reasonably stable wedlock between mothers and fathers for children, or simply stem from a desire to not experiment with a core unit of civil society.

Other states revise marriage arrangements to reflect new values and norms, but neither judgment is irrational. That’s the genius of the U.S. federalist system. It would be an act of judicial imperialism to declare that the meaning of marriage that has prevailed across the Western world for millennia is suddenly unconstitutional because it is “irrational” and force the new concept on everyone.…

[L]iberals and some libertarians argue [that the Defense of Marriage Act] is an affront to federalism. We disagree.

Under their police powers, the states govern domestic arrangements—marriage, divorce, child custody, etc.—and for two centuries the federal government borrowed the state definitions. This was unsettled in 1993 when the Hawaii supreme court legalized gay marriage, confronting Washington and the states with the possibility of many competing interpretations.

In this unprecedented context, refusing to take a position was itself taking a position, so Congress decided to clarify a uniform national standard for the purposes of the 1,100 federal laws that rely on marriage. For example, Doma’s Section 3 defines who is a spouse for Social Security benefits and which couples can file joint tax returns.

Doma doesn’t usurp state prerogatives or outlaw experimentation, or else those nine states could not have legalized gay marriage since Doma passed. In the Constitution’s system of dual federal-state sovereignty, each coequal sovereign has the power to define marriage for its own sphere.…

A same-sex marriage ukase would achieve that rare thing, harming advocates and opponents and everyone in between. Since marriage is more than an intimate relationship but an expression of legitimacy in the eyes of society, Supreme Court-mandated marriages would confer fewer benefits on gays and lesbians than would popular acceptance. Meanwhile, the Court would tell millions of Americans that their deep moral convictions are artifacts of invidious bigotry.

The Supreme Court does not have a good record legislating cultural change. A ruling on behalf of same-sex marriage could enshrine Hollingsworth and Windsor with Roe v. Wade, the 1973 abortion decision that imposed a judicial diktat even as laws in many states were liberalizing. Instead of finding a rough consensus inside the political mainstream, abortion became an all-or-nothing combat that still rages.

The same-sex marriage cases are an opportunity for the Court to show it has learned from that mistake. Justice Kennedy and his colleagues can incite another Forty Years War or they can return their social jurisprudence to the measured, incremental approaches the Constitution intends.


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