"The word that keeps coming back to me in this case is millennia, plus time. ... This definition (of marriage) has been with us for millennia. And it’s very difficult for the court to say ‘Oh well, we know better’.” Coming from justice Anthony Kennedy, the presumptive "swing vote" on the Supreme Court, this statement has gotten much more attention than it might otherwise have gotten, had it been uttered, for example, by one of the predictably Republican-voting Justices.
We will know in about two months time, I suppose, how the Supreme Court finally adjudicates the complex and contentious issue of same-sex marriage. The Court's capacity to surprise always injects an element of uncertainty into predictions of its decisions (and even more so of the rationale for a decision). Still, few will be surprised if the Court goes ahead and rules as is widely expected in favor of a constitutional right to same-sex marriage. Likewise few will be surprised if Justice Kennedy again provides the decisive vote - although Chief Justice Roberts' comments on gender discrimination might suggest the possibility that he could end up writing the opinion with essentially a similar outcome but on narrower grounds. Time will tell.
Substantively, there are extremely serious legal and moral matters at issue in this case and in the larger societal debate about marriage. Here, however, I wish to consider not the legal or moral substance of the debate but only the process American society is using to resolve it.
Thus today (quite apart from the merits of either side of the case) I can't help coming back to Justice Kennedy's claim about the monumental significance of this issue and the astounding fact that we have evolved a legal system in which matters of such political, social, and moral magnitude are decided in such a strange fashion - by nine unrepresentative individuals whose institution arrogated this power to itself some two centuries ago - and that the legitimacy of that judicial power-grab is so universally accepted as the basis for legitimizing changes in social policy.
Back in the day, when I was an aspiring academic studying such matters, the Supreme Court's decisions were often controversial but its legitimacy was widely accepted because there seemed to be no other way in our system to provide a final resolution to such fundamental disputes. On the one hand, as one of my professors used to like to say, "The Supreme Court isn't what it used to be, and what's more it never was." On the other hand, the Supreme Court could counteract that perception by enveloping itself in an above-politics mystique that was both of the Court's own creation and that was widely acquiesced in by society as a whole. Judicial Supremacy has survived not so much because it makes any principled sense, but because it works (often in the process freeing the "political" branches from having to take ultimate responsibility for difficult decisions).
It helped, of course, when the Court behaved in ways which reinforced its mystique. In one of the 20th century's most decisive cases, Brown v. Board, which overturned state-mandated racial segregation in public schools, the Court came down with a unanimous decision. That certainly helped the cause - and also added to the Court's aura as an above-the-partisan-fray arbiter of ultimate principles. On the other hand, when decisions have been split, especially when split (as they often are nowadays) along predictably political party lines, the aura of the Court diminishes accordingly.
Still, in our dysfunctional political system, leaving the Court to play this particular role seems to be almost everybody's preference. I think back to the disputed presidential election of 2000 into which the Court unwisely inserted itself - unwisely in terms of its own institutional legitimacy, but wisely in terms of the political party preferences of the Court's majority. By my reading of the Constitution, it would more properly have been for Congress to resolve questions about disputed electors. But Congress was quite content to pass the buck to the Court. When Congress did meet in January 2001 to certify the election, the feeble attempt to assert Congress's role in the process was roundly rejected.
So we have this amazing situation that the final decision about adopting a new definition of marriage, which, whatever its purported merits, must inevitably entail (as Justice Kennedy and others have noted) a radical rejection of hitherto universally accepted human experience of marriage as a gendered institution, is to be decided not by democratic deliberation and debate but by the nine otherwise unaccountable, appointed justices. Whatever the outcome and whatever the merits of the outcome, it seems like such an astounding way to make such a historically monumental decision.
Human beings being fallible, there is, of course, no reason to assume that either mode of decision-making - either the democratic way or the judicial way, or for that matter any other way we are familiar with - will automatically produce a better result. Good process will hopefully produce good results more often than not. But good process should always invite acceptance of the results as in some fundamental sense a legitimate outcome that society as a whole can embrace or at least learn to live with. It remains to be seen how well this process will fare on that score.
Compared with upending the hitherto universal experience of marriage as a gendered institution, Brown v. Board undid what was a relatively recent, localized political policy regime, which lots of people already considered bizarre at best and morally wrong at worst. And, even with the legitimacy of a unanimous Court decision, it still proved contentious and hard to end segregation, although over time the logic of that unanimous decision has prevailed in principle and in law. In contrast, Roe v. Wade, represented a judicial intrusion into an ongoing political debate that, in trying to stifle that debate, ended up fomenting decades of "culture war" with no evident end in sight. It remains to be seen how the long-term implications of this forthcoming court decision will play out.
One obvious difference from Roe v. Wade is that, whereas public opinion on abortion remains divided and that division is still experienced intensely by many on both sides, public opinion on same-sex marriage has moved radically one way in support of it, much more widely and quickly than anyone would have predicted even a decade ago. So the Supreme Court's contribution to this debate's resolution may well be experienced very differently in this case. Still it remains to be seen whether this judicial resolution of the debate will be experienced politically and socially as a legitimizing, unifying process or as a disruptive, divisive one.