Jurisprudence

In 1973, the Supreme Court intervened to end a complex, often frustrating political process by which women and their supporters were slowly working their way toward a right to choose.

In Roe v. Wade, the Court substituted its judgment for that of the people and their representatives in the fifty states.  The result has been more than forty years of Republican dominance in national politics, and almost complete Republican control of America's heartland.  By rushing in where more prudent jurists should have feared to tread, the Roe Court handed the forces of the Right a new lease on life - at a time when they were close to extinction.

A woman's right to choose is important, but it can legitimately be asked whether it would not have been preferable to adopt a more gradual, political approach which did not have the side-effect of bringing conservatism back from the dead. 

Americans - including American women - have paid a steep price for a victory they would have won anyway. 

This week, as the Supreme Court begins its deliberations in Hollingsworth v. Perry, the justices will have before them arguments urging a ruling as sweeping - and potentially explosive - as the decision in Roe v. Wade.

Liberals and progressives should view this case with clear eyes.  There is danger here.

On the issue of same-sex marriage, public opinion is changing with incredible speed.  If marriage equality is left to the political process, it seems likely that, within a decade or two, same-sex marriage will have become so widely accepted that - even if a few states held out - there would be no serious reaction to a Supreme Court decision recognizing the right to marry as fundamental.

But not yet.  

The Supreme Court could deal liberals and progressives a decisive defeat by handing down a sweeping decision in favor of marriage equality before public opinion on the issue has properly matured. 

This is a time for patience.

In deciding this case, the Court has several options between a sweeping declaration of a new "right to marry" and a decision to sustain California's deplorable Proposition 8. 

It's a complex case, and Americans of goodwill should give careful consideration to these options.

The case began with a decision of the California Supreme Court holding that the state's ban on same-sex marriage violated the equal protection clause of California's state  constitution. 

Later that year - in November, 2008, Californians voted - by a relatively narrow margin - for Proposition 8,  which purported to reverse the state supreme court's decision.

Opponents of Prop 8 sued in state court and lost.  They also sued in Federal district court and won decisively.  In a sweeping decision, Judge Vaughn Walker declared that Prop 8 violated both the due process  and equal protection clauses of the Fourteenth Amendment.  Judge Walker's sweeping language could form the basis of a Supreme Court decision requiring all fifty states to recognize same-sex marriage.

On appeal, a panel from the Ninth Circuit Court upheld Judge Walker's result, but on far narrower grounds.  The Circuit Court's decision was legally more complex, but its logic was compelling.  In essence, the court ruled that - once California's constitution had been interpreted, by California's highest court, as requiring same-sex marriage - that decision recognized a vested right of all Californians to marry. 

In American jurisprudence, there has long been a bias toward the extension of liberty.  This goes back to the Founders' belief in both natural rights - unalienable rights which can be discovered by human reason - and the idea of progress.

The Ninth Circuit ruled in accordance with these ideas - holding that, once a right has been established, a majority of citizens cannot arbitrarily deprive a minority of that right.

The effect was to restore marital equality in California, but not to create a nationwide right. 

The case is now before the Supreme Court as Hollingsworth v. Perry, which was argued this morning.

The Supreme Court will have a number of options.  One, which is considered unlikely, but not impossible, is that the Court will overrule the Ninth Circuit and uphold Prop 8 - thus restoring the ban on same-sex marriage in California.  In that case, Californians would have to undo Prop 8 through the political process.

On the other hand, the Court could adopt Judge Walker's holding and announce the creation - or recognition - of a new fundamental right to marry, regardless of the sex of the two adults choosing to marry.  That is what most advocates of same-sex marriage are so unwisely hoping for.

The Court could adopt an intermediate position, sustaining the judgment of the Ninth Circuit, thus recognizing a right to marry in California, but not nationwide. 

Finally, the Court has another option.  The Obama administration has entered the case, proposing a different line of reasoning which would - in simple terms - erase the line between civil unions and marriages in California and seven other states which have established civil unions but refused to call them marriages.

In American history, there has been a handful of cases in which the Supreme Court has entered politics - acting legislatively in a way which came either too soon or too late.  Thus far, two of these cases have created political revolutions:  Roe v. Wade (the abortion rights case) and Dred Scott v. Sandford, the 1857 decision which declared that slavery could not be restricted by state law - and that African-Americans did not enjoy the natural rights of whites.

Both of these cases created vehement political reactions, effectively reshaping American politics in a direction opposite to the Court's intended result. 

It is entirely possible that the Perry case could be decided without a similar explosion, but American liberals and progressives should approach this case with caution. 

A decision along the lines suggested by the Ninth Circuit would add America's most populous state to the ranks of states recognizing same-sex marriage - and give a boost to those fighting for marriage equality through the political process.

A decision along the lines suggested by the Obama administration would add seven more states to this number - give an even greater boost to advocates of marriage equality - but likely provoke only a mild reaction from the religious Right.

A decision along either of these lines would do justice to millions of gay Americans - and give them encouragement  in persuading their fellow citizens that the time has come to recognize marital equality.

But a more sweeping decision, along the lines of Judge Walker's district court decision, would be fraught with danger.  It might have the ironic effect of strengthening the forces of reaction at a time when America seems finally to be moving - tentatively - in a liberal-progressive direction.

This seems a terrible risk to take - with the potential for snatching defeat from the jaws of victory.

This is a time for judicial restraint - and political prudence.