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?