Supreme Court

Should the Supreme Court Practice Judicial Restraint in the Gay Marriage Cases?


At The New Republic, gay marriage proponent (and frequent Reason contributor) Jonathan Rauch urges the Supreme Court to practice judicial restraint and refuse to give gay marriage a sweeping legal victory:

I tell my gay friends: imagine if the Supreme Court had ordered gay marriage this past June, at the end of its 2011-2012 term. November's game-changing electoral victories would never have happened. Gay marriage advocates would be forever stereotyped as political losers who won by running to mommy. Our opponents would mock and denigrate our marriages as court-created, legalistic fictions. The country would never have shown how much it has changed.

If we have come that far in five years, imagine where we might be in five more. Imagine, then, the opportunities to extend and consolidate support that we will lose if the Supreme Court steps in now. Strange but true: a favorable Supreme Court intervention next year would make us weaker, not stronger.

There's definitely something to be said for this argument. A broad 5-4 decision in favor of gay marriage, which might either recognize a constitutional right to same-sex unions or hold that the Equal Protection Clause forbids the government from banning them, runs a real risk of sparking a Roe v. Wade-style backlash by the American right. That's the last thing gay marriage advocates need now that they're winning popular electoral victories.

But just to complicate Rauch's argument a little, keep in mind that the judiciary was not designed to be a democratic branch of government. Indeed, one of its central purposes is to protect the rights of unpopular minorities from the tyranny of the majority.

Here's another way to think about it: If a justice of the Supreme Court believes that the Constitution protects gay marriage, should he or she vote otherwise for political purposes?


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  1. Time for everyone who supported RTW as necessary legislative expansion needed to combat an already bad existing situation to come in here and make the exact opposite argument in regards to gay marriage.

    1. ^^the above does not apply to robc, who though I disagree with him, is as constant as a rock in his philosophy.

      1. So the two, RTW and gay marriage are exactly the same, philosophically?

        1. Learn to read before you reply, Marshall:

          Time for everyone who supported RTW as necessary legislative expansion needed to combat an already bad existing situation to come in here and make the exact opposite argument in regards to gay marriage.

    2. (crickets)

    3. I support RTW. But I think the Supreme Court out to rule against this because there is no right to gay marriage in the Constitution. It is not the Court’s job to fix every problem or give every aggrieved party their pony.

      1. Is it within the federal government’s power to define marriage? Point me to that part of the Constitution.

        1. No. It is a state issue, and should stay that way.

    4. I support both RTW and gay marriage as realistic incremental legislative change.

      RTW is a change in law, not an expansion of it. The same goes for gay marriage.

      Neither is the libertarian ideal. Both bring us to a more libertarian place than we are, currently.

      I also don’t support the idea of “judicial restraint”. SCOTUS should err on the side of individual liberty every single time it has a controversial case without a clear outcome. It should never err on the side of majoritarianism.

      SCOTUS exists as a check on individual power (an imperial President), and on majoritarian excess.

      If SCOTUS doesn’t act as such a check, there’s no reason to have one.

      1. Which liberties do gay marriage expand?

        1. Freedom of contract.

          Gay relationships exist. People in them are not able to enter into the same contracts as straight people. There are rights that one can only effectively confer on someone else, using a marriage contract.

  2. Homosexual conduct was illegal in nearly every state and marriage recognized in every state when the 14th Amendment was passed. I don’t see how the hell it could have ever been intended to create a right to something that was illegal at the time. To say gay marriage is a constitutional right rather than something that the states are free to recognize if they choose to is to basically say the Constitution means whatever the fuck the Supreme Court decides it means.

    1. Equal protection under the law is a right.

      Homosexual conduct is different from a marriage contract between two people of the same sex. Laws against homosexual conduct have already been struck down, but they’re still not about contracts.

      Marriage laws state nothing about sexual conduct, or at least nothing they might say has been upheld by the courts.

      So… Can two people, claiming equal protection, sue for the right to enter into a marriage contract? Yes. Can they win? We will see.

      But this has nothing to do with whether homosexual conduct was illegal in the 1860s, really.

      1. So you believe that it is okay constitutionally to ban gay sex but not gay marraige. Nuff said. Gay marraige wasn’t legal then either, BTW.

    2. The constitution does, in fact, mean whatever the fuck the Supreme Court decides it means. Is some higher arbiter out there?

    3. So Loving v. Virginia was decided wrongly then as well? Since anti-miscegenation laws were virtually universal in 1866.

      1. The fourteenth amendment was meant to stop those laws. You know how I know, because the authors of it said so. They never said a thing about homosexual “marraige.”

        1. And the 2nd Amendment never said anything about modern semiautomatic pistols. Guess it doesn’t apply to those. Wow, this “it means what I say it means” stuff is pretty heady bullshit? How’s your jenkum, Murrican?

          1. It mentions arms, by which the founders said meant guns, and semiautomatic hanguns are a type of gun. In contrast, the 14th ammendment was created specifically to stop racial discrimination. It said nothing about homosexuals, who existed back then too.

            1. It doesn’t actually mention race, either. By your logic it would be okay for states to define marriage as “between a man and woman of the same race”, effectively outlawing interracial marriage. Somehow I don’t think that argument would work.

              1. The founders had clearly intended for it to mention race. Why don’t you read what they wrote? They had intended for it to inculde race and to prevent laws like that because THEY SAID SO. They never said anything about the right of homosexuals to marry. Marraige was always supposed to be a protected institution for the encouragemeant of procreation. They would have thought someone mad for bringing the idea of homosexual marraige up!

                1. The amendment doesn’t limit it to race. Where does it say “this will only apply to race” in the amendment? By that logic, the 2nd Amendment doesn’t cover modern weapons because they weren’t what the amendment was intended for.

                  Marraige was always supposed to be a protected institution for the encouragemeant of procreation.

                  Shorter Murrican: “BUT IT’S TRADITION!!!!!!1111”

  3. “runs a real risk of sparking a Roe v. Wade-style backlash by the American right.”

    A convenient myth – the only reason people object to abortion on demand is that the Supreme Court forced the issue too soon. If only they’d moved slower, like the boiling water with the legendary frog, then everyone would have grown to accept abortion rights!

    1. That is a good point.

    2. It’s a bigger myth.

      What backlash?

      A niche group embraced by the GOP makes an issue of this on one side, and a niche group embraced by the Democrats on the other.

      Most people aren’t all that animated about it, and agree with the decision more or less.

      That’s why we haven’t seen any legitimate attempts at changing it, in Congress.

      Demagoguery by a few douches is not “backlash”.

      1. BTW the Congressional elections in 1994 and 2010 were backlash from the right, against various things from the Clinton gun ban to Obamacare.

        No such backlash occurred as a result of Roe v. Wade.

        1. I would simply suggest that you look at media articles and fundraising letters about threats to the Freedom to Choose. Or review a list of examples of backlash, each of which provoked screams of bloody outrage from RvW supporters:

          Federal funds cut-off for elective abortion. Informed-consent laws, late-term abortion bans, etc. etc.

          1. This stuff goes on, on both sides.

            Niche demagoguery, yes. Backlash? No.

            Backlash requires results, e.g. the nasty stuff that happened in the South as backlash to Reconstruction: segregation, lynchings, the Klan, 100 years of total Democratic Party dominance, etc.

            WRT late-term abortion bans, Roe v. Wade specifically didn’t address them.

            1. “WRT late-term abortion bans, Roe v. Wade specifically didn’t address them.”

              As a matter of fact, Roe attempted to establish a right to abortion for *very* broadly defined “health” reasons. Without a backlash, this would have been the new normal.

              1. As a matter of fact, Roe established a “viability” test and even laid out trimester guidelines for abortion restrictions. It specifically allowed states to restrict late-term abortions.

                States had banned abortion altogether. That’s WHY there WAS a Roe. v. Wade! That’s the only reason. So, after the decision, various states eliminated bans and passed new late-term restriction laws in line with the decision.

                This is not backlash. Response, sure, but backlash? Not hardly.

                1. When even Tony admits there was backlash, you’re pretty much out on a limb by yourself.

                  1. Ad hominem.

                    Don’t be a dumbass.

                    Do you have any substantive disputes with what I wrote?

                    Furthermore, since when did agreement with Tony lend anyone more credibility?

  4. a Roe v. Wade-style backlash by the American right

    Why, yes, I remember when Sen Jesse Helms and all those other conservative senators and congresscritters were so incensed over RvW that they passed that constitutional amendment outlawing abortion the very next session of congress. LOL.

    1. Yeah because four guys can pass such an amendment. It is not like it takes a super majority and a super majority of the states to pass an amendment or anything.

      1. Yeah but 4 guys don’t make for “backlash” either.

        DWS’ rantings don’t constitute genuine “backlash from the left” either.

  5. They should go whole-hog and declare that any combination of genders and numbers of consenting adults are allowed to declare themselves as a marriage unit. Three heteros and six tyranny’s?.2 homos and 1 straight, 1asexual female and 3 homosexual males?.any combo is allowed.

    This includes all combinations of relatives as well.

    If we’re going to change this, let’s not do it half-assed.

    And for those that say I am being silly, no, it is you that’s being na?ve and closed-minded.

    1. Correct. What is the logic limiting marriage to only two people?

      Mormons used to like polygamy, Muslims still do and these people have rights, too you know.

      1. Personally, I’m hoping for acceptance of my new marriage innovation, “antigamy”. It involves 0 or fewer people.

  6. Jonathan Rauch is right about 90% of everything, but he just won’t give up his opposition to gay marriage by “judicial decree.” I explained why he is wrong here at in 2008:
    Legislating Freedom from the Bench
    The case for legalizing gay marriage by “judicial decree”…..from-the-b

    1. Translation: I like judicial restraint except when I want to get something changed by decree.

  7. I seem to remember that is was only a few short months ago that a lot very intelligent, sophisticated, educated people were insisting that if the Justices of the Supreme Court so much as dared to strike down a piece of legislation adopted by the People’s Elected Representatives in Congress on a ground as ridiculous as it being inconsistent with the Constitution, they would forever tar themselves as political hacks worthy of no respect whatsoever and tarnish the reputation of the courts forever.

    DOMA is a piece of legislation adopted by bipartisan majorities of both houses of Congress and was signed into law by a Democrat president who continues to this day to enjoy higher approval ratings than either of his successors.

    I wonder how many of the people who demanded judicial restraint last spring will be doing a 180-degree flip in the coming months.

  8. On the other hand, one could argue that marriage equality has had to wait longer than traditionally warranted in that it’s only coming to the court after gaining popular support–which can’t be said for interracial marriage or school integration among others.

    That it has popular support, and that it’s just not controversial on a basic level like abortion is, means there won’t be a significant backlash, and any backlash will inevitably subside with time.

    I believe CJ Roberts is too intelligent a jurist not to realize that if his court votes that marriage equality isn’t required by the constitution that history will judge him a failure on this issue.

    1. Except that the constituion explicitly bans segragation. It sais nothing about homosexuals. But what’s it to matter to someone like you, who thinks that the constitution means whatever the fuck he wants it to. Why even have a constitution, then? Why not have the president swear to protect a blank piece of paper, upon which everyone can right whatever the hell the want, figurativley, of course, as only a few amoung us would ever have any power?

      1. Clearly you think the constitution means “whatever the fuck” you want it to. Why am I supposed to take your word for it, again?

  9. “If a justice of the Supreme Court believes that the Constitution protects gay marriage, should he or she vote otherwise for political purposes?”
    If a justice of the Supreme Court believes that the Constitution protects gay marriage, he’s either an idiot or a liar. The framers never said a thing about the constitution protecting homosexual marraige. If he does, that means he only beleives the constitution does what he wants it to do. There is a word for this: liberalism.

  10. Dude seems to be talking a LOT of smack!

  11. As much as it pains me to agree with American, I do not think a state banning gay marriage is unconstitutional, although I may disagree with it. It was not something intended by the fourteenth amendment. I do think the feds should be obligated to accept state-granted licenses as valid, considering they are also never given the power to define marriage

    1. So a state banning interracial marriage would also be okay, since that wasn’t referred to by the 14th either? And the 2nd Amendment doesn’t refer to modern firearms, it was obviously intended for things like muskets, so IT doesn’t apply to anything else either?

      States weren’t given the power to define marriage, but that argument just means all laws concerning marriage and defining it should be struck down. I’d be for that, but it’s not going to happen. As long as government’s involve themselves in marriage, they can’t be allowed to discriminate based on sex (or race, for that matter).

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