Be Careful What You Wish For

This week, the Supreme Court will hear two key cases dealing with right of one competent adult to marry another competent adult of the same sex.

The Court's decisions in these two cases will bear directly on the interests of gay Americans who wish to marry - or, being legally married in one state, to have their marriage legally recognized by all fifty states and the Federal government.

They will also say a great deal about the sort of nation we live in.

But they will say more.  The Court's decisions will bear on the continuing process of defining the relative powers of the states vis-à-vis the Federal government.  They will reveal much about the willingness of courts to act in an essentially legislative capacity. 

And they will reflect on the Roberts Court's understanding of the Founders' view of natural rights - the doctrine upon which our nation won its independence and established the present Constitution.

Most Americans will, understandably, view these cases through the lens of the immediate issues involved.  But there are subtler questions involved in these two cases, and citizens interested in the long-term preservation of the United States as a constitutional republic - rather than a mere majoritarian democracy - have a duty to weigh these questions carefully.

It is entirely possible for an American who strongly supports marriage equality to hope that the Supreme Court will decide these cases in ways which would provide for  marital equality in California - and perhaps a few other states - without proclaiming a nationwide right to marriage equality.

Because this truth cannot be gainsaid:  A sweeping decision by the Supreme Court, announcing a nationwide right to marry, would be viewed by many - especially in more conservative states - as yet another case of an unelected bench substituting its judgment for the "will of the people", as determined by the complex process of electoral and legislative politics.

Liberals and progressives should view the consequences of such a decision with great caution - even suspicion.

A few decades ago, most liberals and progressives were delighted when courts acted legislatively.  In those days, the Federal bench was dominated by liberal jurists comfortable with using their power to advance new definitions of freedom and equality.

Today's Federal judiciary reflects four decades of conservative Republican appointees.  Under these circumstances - especially since the jurisprudential atrocity of Citizens United v. FEC - judicial activism has lost a good deal of its luster.

For conservatives, of course, the equivalent of Citizens United - the case which granted corporations many of the First Amendment rights of individual citizens - is Roe v. Wade, the case which established a woman's right to terminate a pregnancy.

Looked at through the lens of legislative policy, most liberals and progressives entirely agree that women should enjoy this right. 

That said, there are good reasons for modern liberals and progressives to regard Roe v. Wade as a dangerous instance of judicial overreach.  There are constitutional and philosophical issues here, of course, but -  in an essay which focuses on the Perry case - it might be well to stick more closely to the present.

In  terms of political history, Roe v. Wade turned out to be a practical disaster.  By short-circuiting the political process - through which proponents of a woman's right to choose were slowly making headway - Roe v. Wade created a political revolution.

The decision disarmed advocates of women's rights.  Having suddenly won what seemed a total victory, they laid down their arms and celebrated.

At the same time, Roe v. Wade outraged abortion opponents, who believed they had been denied the chance to make themselves heard at the polls.  That sense of injustice helped to mobilize the forces of social conservatism as no other contemporary issue could possibly have done.

Evangelical Christians - mostly middle-class Americans whose economic and social interests should have made them natural supporters of progressive policies - flocked to the Republican Party.   Over time, their influence caused the Republican Party to make a long, accelerating shift to the extreme right - even as the GOP regained dominance in American politics.

This conservative era has now lasted for over forty years. 

Thus, while one might applaud the fact that - for the past four decades - American women have enjoyed the right of choice, their victory has been purchased at an enormous price, including:

Every great idea of liberalism and progressivism which has been thwarted or reversed  since the rise of Ronald Reagan.

All the promising leaders - including countless women - who have fallen at the polls, or never bothered to run at all, because of the power of social conservatives.

Every pro-corporate, anti-environmental, anti-civil rights, and anti-woman decision of Supreme Courts appointed by Republican Presidents whose election was made possible by "right-to-life" voters.

All the dead, disabled, widowed and orphaned from several unnecessary wars - or the unnecessary extensions of necessary wars - into which Americans were led by Presidents elected because of their opposition to abortion.

Weighed thus, the question can reasonably be asked whether - as a matter of public policy - the positive results of Roe v. Wade have outweighed the harms resulting from the  polarization of American politics around the issue of abortion.

It is even possible to imagine that a Supreme Court with the confidence to legislate a nationwide right to marry might not also be a Supreme Court with the arrogance to disregard the principal of stare decisis - and reverse Roe v. Wade itself.

The truth is, neither abortion law nor marital law properly belong to the Supreme Court.  

They belong to the arena of politics, and always did.

Roe is now settled law, and should remain so.

But in Perry, the Roberts Court would be wise to avoid another Roe.

And liberals and progressives would be wise to ask themselves whether a sweeping decision in Perry is what they really want.