Today, my Facebook feed is all gay marriage, all the time. But while college kids sanctify their progressiveness by uploading pictures of equal signs, it looks like the Supreme Court is treating the issue with a little more skepticism.
Justice Alito (“the Burkean justice“) asks, “You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean . . . we do not have the ability to see the future.” It looks like some of the others are at least open to throwing the case out for lack of standing. (Ironically, such a “setback” would only happen because the petulant Governor Brown refused to defend Prop. 8 in court!) Dismissing for standing would leave the lower court ruling against Prop. 8 in place, but would stop short of imposing the Court’s definition of marriage on the rest of the country.
The New York Times‘ Adam Liptak writes that the justices are partially motivated by fear of creating a new Roe v. Wade, which, rather than settling cultural disputes, only exacerbates them. According to Liptak, even Justice Ginsburg has her qualms:
Justice Ruth Bader Ginsburg, a liberal and a champion of women’s rights, has long harbored doubts about the ruling.
“It’s not that the judgment was wrong, but it moved too far, too fast,” she said last year at Columbia Law School.
I have no basis to predict how a pro-gay-marriage ruling would compare to Roe. And predicting rulings on controversial cases is generally a loser’s game. Months from now, all of today’s armchair speculation might look incredibly naive.
But, at the very least, it’s nice to see the justices expressing a little more skepticism against pushing the entire country in their preferred cultural direction. Why, after all, do Alabama and California need to have the same marriage laws? And why should Anthony Kennedy be the one to decide that?