Gay marriage and the Supreme Court’s empire

This month, the Supreme Court will hear argument in Hollingsworth v. Perry, which presents the issue of whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman. I wrote here about the Obama administration’s brief arguing that California’s definition is unconstitutional. And I will probably have more to say about the case as it proceeds.

But before getting into the weeds, we should step back in awe of the fact that the Supreme Court will likely decide the issue stated above. Assuming that threshold issues such as standing don’t prevent a ruling on the merits, nine glorified lawyers are about to tell us whether the traditional definition of marriage as requiring members of the opposite sex is rational and/or useful (whether the standard is “rationality” or “utility” is up for grabs in the case). By “traditional definition of marriage” in this context, I really mean the universal definition — one that, as far as I know, prevailed until very recently in all societies since the beginning of recorded time.

Isn’t it odd that as few as five judges could determine that the traditional definition of this fundamental institution is irrational (or not useful), and make this judgment stick? All conservatives, in the traditional sense of that world view, should be appalled.

It’s natural that judges would like to have the power to declare traditional marriage irrational. Many of us aspire to be the measure of all things. And it’s natural that lawyers as a group are on board. Law school can be grueling; finding a job afterwards has become daunting; and job satisfaction among lawyers often falls short of expectations. To be part of a profession that gets to litigate and pass on the very biggest issues provides some consolation.

The surprising thing is that the public accepts the immense power grab that Hollingsworth v. Perry exemplifies. They do so in part because jurists from John Marshall to John Roberts have exercised their power with an eye on public perceptions. By acting “modestly,” or at least with false modesty, they have tried to maintain the good will necessary to maintain legitimacy in the eyes of the other branches and the public as a whole. Cloaked with that legitimacy, they (or their “brethren”) can act with flagrant immodesty when the occasion arises.

This is another way of saying that the law’s empire has mushroomed because lawyers are cleverer than non-lawyers. Unfortunately, they are not wiser. And they certainly aren’t wise enough to tell us authoritatively whether the traditional definition of marriage as between a man and a woman is rational/useful.

Some will say that by adopting the Fourteenth Amendment, the body politic put courts in the position where they one day would have to pass on the constitutionality of the traditional definition of marriage. That, of course, is how things have worked out.

But those involved in enacting the Fourteenth Amendment would be astounded that it has led to this. In spite of decades of indoctrination and conditioning, I’m surprised, myself.

STEVE adds: There’s actually something of a split among gay marriage advocates over this case that the media, naturally, is either ignoring or isn’t even aware of.  Jonathan Rauch is one gay marriage proponent who thinks it is a big mistake, and he told me he tried to talk Californians out of bringing the suit to federal court.  Through a long chain of odd circumstances back in January I happened to meet and have a long conversation with one of the leading gay marriage activists in the nation, and he surprised me by saying he recognized the potential political disaster of achieving gay marriage by “our equivalent of Roe.”  The problem, of course, is that too many on the Left have gotten used to getting what they want from judges instead of democratic persuasion.

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