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This day in Supreme Court essentialism

Next month, the U.S Supreme Court, in it wisdom, may pass judgment on the age-old definition of marriage. Until very recently, marriage has universally been deemed to require an opposite sex component, but the Court may overturn this definition.

The fact that the Supreme Court is even considering such a change represents, for me, the reductio ad absurdum of American constitutional law jurisprudence. The fact that, until very recently, marriage has universally been deemed to require an opposite sex component doesn’t mean that this component must be required forevermore. But nine glorified lawyers shouldn’t be the ones who make the change.

To be fair, though, the Supreme Court is not without experience in defining the essential components of familiar institutions. Twelve years ago today, the Court distilled for us the essence of golf.

It did so, Ed Whelan reminds us, in the case of PGA Tour, Inc. v. Martin. The issue was whether the Americans with Disabilities Act of 1990 requires that the PGA Tour allow a disabled contestant to use a golf cart in its professional tournaments when all other contestants must walk. Answering in the affirmative, Justice Stevens’s opinion for the Supreme Court determines that walking is not “fundamental” to tournament golf.

Justice Scalia’s dissent is classic:

If one assumes … that the PGA TOUR has some legal obligation to play classic, Platonic golf … then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf.

I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?

The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf. Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.

In the case of marriage, a decent appreciation of democracy, human history, and the fallibility of the individual should cause the Court to decline to redefine it.

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