If the tenor of their questions is any indication, the justices on the U.S. Supreme Court appeared evenly divided in the challenge to California's law banning gay marriage, with Justice Anthony Kennedy, predictably, in the middle. But rather than deciding which way to tip the scales, Justice Kennedy seemed to be looking for an escape hatch. Indeed, his most persistent line of questioning to the advoates on both sides sounded more like a lament: "I just wonder if this case was properly granted."
It is, of course, notoriously difficult to prognosticate Supreme Court decisions — the conventional wisdom after last year's oral arguments was that the Affordable Care Act was doomed — but the prospect that the court will declare a constitutional right to marriage equality certainly seemed dimmed today. There are a few routes the court could take to avoid a ruling on the central question at hand, most of which would make gay marriage legal in California again but would have no effect elsewhere. What's surprising is that a substantial portion of gay marriage advocates may be breathing a sigh of relief at that prospect.
Some have begun to argue that, while there is no justification under the Constitution to support laws defining marriage as an institution only for opposite-sex couples, the court should instead find a way to duck the main issue for fear of a public backlash.
By way of analogy, they point to Roe v. Wade, the 1973 decision establishing a constitutional right to abortion, and the grassroots anti-abortion movement that grew out of it.
Ultimately, though, the comparison is a false one, as is the notion that the Supreme Court should strategize on matters of basic civil rights.
Legally and morally, the issues presented by gay marriage and abortion are quite distinct. The decision in Roe rested on what justices considered to be a right to privacy implied but not directly stated in the Constitution's 14th Amendment. The argument for gay marriage rests explicitly in the Constitution's Equal Protection and Due Process clauses. Morally, abortion rests on the competing interests of the woman and the fetus, and the anti-abortion movement derives much of its energy from the belief (which we do not share) that the fetus has a right to life beginning at conception. Gay marriage opponents point to tradition or Scripture, but they are unable to mount a serious argument that allowing same-sex couples to marry hurts anyone. Indeed, the attorney for the supporters of Proposition 8, Charles J. Cooper, tried to dodge that question during today's arguments.
The Supreme Court's job is to consider whether a law meets the requirements of the Constitution, not to base its decisions on whether they will be universally embraced. Moreover, the notion that Roe v. Wade produced a popular backlash that would be wise to avoid in the case of gay marriage is dubious.
Gallup has been polling on attitudes about abortion since 1975, and the percentages of Americans who think it should be legal under any circumstances, legal under some circumstances or illegal altogether have changed little in that time. Support of gay marriage, by contrast, has seen a rapid rise in recent years. Young people overwhelmingly support marriage equality, but approval has risen across all age groups, suggesting the change in attitudes will be durable.
The California gay marriage case is not a repeat of the choice the court faced in Roe v. Wade. It is this generation's Brown v. Board of Education. Justice Antonin Scalia and Theodore Olson, the attorney for the gay marriage proponents, alluded to that comparison when the justice questioned when, exactly, it became unconstitutional to deny same-sex couples the right to marriage. Mr. Olson sought to answer the question with a question: "When did it become unconstitutional to assign children to separate schools?" Mr. Scalia replied: "At the time the Equal Protection Clause was adopted."
The answer for gay marriage is the same. Just as it took nearly a century for society to understand how the 14th Amendment applied to questions of racial segregation, it has now taken 60 years more to understand how it applies to marriage discrimination. Mr. Olson was apt in quoting a previous opinion of Justice Ruth Bader Ginsburg: "A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded."
Brown v. Board sparked a backlash far more profound than Roe v. Wade did — enforcement of the abortion ruling did not, for example, ever require the president to send federal troops into an American city. But who would argue now that the court's decision in Brown v. Board was a mistake?