Monday, March 25, 2013

Sadly, Supreme Court Unlikely to Find Constitutional Right to Gay Marriage

As the Supreme Court gears up to hear oral arguments in Hollingsworth v. Perry tomorrow, I think of adjectives such as historic, courageous, and just to describe the potentially wide-sweeping decision that the Court may render to legalize same-sex marriage across the country. However, I’m not very optimistic about such a decision's chances. I worry that despite all the momentum there has been in advancing same-sex marriage rights, there hasn’t been enough of it for the Court to jump on the bandwagon. The Supreme Court tends to be reactionary, preferring to solidify change toward the end of a social movement instead of being on the front line. It is an institution outside of the democratic process and works hard to avoid usurping power away from voters. Many argue, and I agree, that gay marriage is a Constitutional issue that doesn't belong to the whims of voters, but I doubt the Court will easily see things this way. In the wake of a nationally divisive case like Roe v. Wade, which Justice Ginsberg describes as "mov[ing] too far too fast," the Court may be extremely reluctant to take the same kind of activist action again. Popular referendums in the last election that, for the first time, upheld or legalized same-sex marriage in 4 states after 29 states amended their constitutions to ban it may signal to the Court that this social movement is in its infancy and is best left in the hands of democratic mechanisms. There are many other arguments on both sides of this debate as well, but it’s anyone’s guess which ones the Court will find most persuasive. Despite what the justices often claim, they do not live in vacuums and consider controversial legal issues far in advance of when the issues first officially come before them. The justices then make the law far more often than they “find” it. I hope they find that gay couples are equal to their straight counterparts and make law to support that conclusion, but my instincts tell me they aren’t there yet.

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