Whenever a court over rules a law, it is, by definition, in conflict with the democratic decision of the people. We, however, wisely give courts the authority to interpret between laws that are in conflict and to hold us collectively to state or the federal constitutions, laws we democratically agreed would be supreme law.
The courts have a prudential obligation to exercise this authority sparingly lest they diminish the moral authority of judicial system and decrease the ability of courts to exercise such authority in crucial cases. When overturning long-held societal conventions, courts must be able to point to a clear constitutional mandate. If courts are perceived to be acting politically rather than under legal authority, they distort the balance between the legislative and judicial processes.
The courts were correctly used to overturn racial discrimination when practiced by state or federal governments in the twentieth century, but it took federal law, the 1964 Civil Rights Act, to eliminate any legal sanction for racial discrimination. The endorsement by a popularly-elected legislature completed the process.
By contrast, the clearest recent example of the overstepping of judicial authority was the Roe v. Wade decision which concluded from ambiguous and dubious constitutional jurisprudence that states essentially have no right to regulate abortion in at least the first trimester. If there were clear rather than convoluted authority to support the decision, it would have been easier to reconcile it with popular opinion.
At the time of the decision in 1973, abortion was still prohibited in many states, but legal in quite a few others. The country was coming to grips with how it wished to deal with issue. If the courts had declined to preempt the political process, we would now probably have a web of diverse laws from state to state, some more liberal some less so on abortion. Some states would be more rigorous about parental notification and about waiting periods. It would have been far easier to experiment with the different approaches from jurisdiction to jurisdiction.
These political decisions would have carried the moral authority of the majority and resulted far less rancor. If mistakes were made, they could more easily been undone. Instead, we have a divisive issue that has made the appointment of each new Supreme Court justice an acrimonious affair and has distorted jurisprudence in other, particularly free speech, cases.
You might think that the courts would have learned their lesson in dealing with these highly-charged social issues, but in 2004 the Massachusetts Supreme Court declared that the Massachusetts Constitution required that the state offer same-sex marriages. This decision survived in Massachusetts and indeed in a 4-3 decision the Connecticut Supreme Court forced that state to recognize gay marriages.
The consequence of such judicial meddling is that across the country states are passing laws directly preventing same-sex marriages. Despite the rather overwhelming Democratic national victories last Tuesday, the issue of gay marriage failed miserably at the polls. After a California Supreme Court decision compelling the state to recognize gay marriages, Proposition 8 passed with 52% in California vastly out performing presidential candidate, Senator McCain who managed only 37% of the vote. The Proposition 8 decision was a particularly dramatic vote, because it imposed a state constitutional amendment to tie the hands of the California Supreme Court. It is not politically healthy to have people overturn a court decision by referendum, but this is what happens when decisions are removed from the legislature where they are more properly decided.
Other states followed California’s example. Arizona and Florida passed anti-gay marriage propositions, also out polling Senator McCain in those jurisdictions. Arkansans voted for an act to prohibit non-married couples from adopting children and becoming foster parents; an act largely directed at same-sex partners.
Given expected changes in the national culture including relentless promotion of a pro-gay rights agenda in the national media, it is reasonable to expect that some states will vote to recognize gay unions in some form. The most likely is some civil union arrangement that provides for simple inheritance and other financial rules that mirror some marriage protections. These will be instituted in fits and starts using different models as different jurisdictions find ways to deal with the issue.
There is no reasonable construction of most state constitutions and the national constitution which compels acceptance of same-sex marriages. The more courts attempt to force the issue the more likely there will be political blow back that will undermine the authority of the courts, increase the political acrimony, and extend the time before which some reasonable and widely popular resolution of the issue is accepted.
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