What should the US Supreme Court do when facing a contested moral
issue? In today's rulings in two same-sex marriage cases, the court
decided to add its voice to the public discussion, rather than
either remain silent or offer a definitive ruling that might end
additional democratic development. The court thus demonstrated its
power to participate in ongoing public discourse, without drowning
out further debate.
Specifically, the court today acknowledged that states have the
right to define marriage, and struck down the federal Defense of
Marriage Act (DOMA) that denied federal benefits to gay couples
legally married under state law.
In another case, it found that proponents of California's
Proposition 8, which defined marriage as between a man and a woman,
had no legal right to contest a lower court's overturning of
The decisions - both narrow 5-4 rulings - benefit gay marriage
without ruling explicitly on its constitutionality.
In addressing controversial social matters, this court apparently
fears getting ahead of social change, but neither does it wish to be
That has not always been the case. Roe v. Wade, the controversial
1973 decision establishing a constitutional right to abortion, is
often cited as the court's anticipating a moral consensus that
failed to emerge. In Bowers v. Hardwick in 1986, by contrast, the
court rejected a right to same-sex intimacy in language that in
retrospect appears harsh and intrusive. The court was burdened by
Bowers for 17 years, until its overruling in Lawrence v. Texas in
2003. The Roe controversy continues to this day.
When dealing with highly charged social issues, one tactic at the
court's disposal is simply to avoid an issue and await further
legislative activity. Inaction, however, also has its price. A court
that is seen to ignore injustice may lose its legitimacy in the eyes
of the people.
Today's decisions in the same-sex marriage cases demonstrate that
the court has a vital additional option.
A majority of justices can indicate endorsement of a particular
constitutional value, without mandating its enforcement throughout
the nation. The justices can thus avoid the twin perils of remaining
silent in the face of injustice or commanding immediate acceptance
of their constitutional vision. They can shape the tide of public
opinion, even as they avoid getting too far behind or ahead of it.
That's what the court did today. In the California case of
Hollingsworth v. Perry, which directly raised the constitutional
right to same-sex marriage, the court did remain silent, finding
procedural grounds on which to dismiss the appeal.
But in United States v. Windsor, the DOMA case, the majority
spoke in clear and ringing tones. …