Home  »  Judiciary  »  Mediaite’s Noah Rothman: Gay Marriage Supporters Should Hope SCOTUS Doesn’t Decide In Their Favor


Mar 26, 2013 Comments Off Jake Hammer

Excerpted from MEDIAITE:

On Tuesday, the Supreme Court heard oral arguments in the case appealing a 9th Circuit decision which invalidated California’s 2008 referendum making gay marriage illegal. In the intervening years between the passage of Prop 8 and today, American attitudes towards gay marriage have altered dramatically. SCOTUS watchers have interpreted the Justices’ questions as suggesting that either the 9th Circuit’s decision will be upheld or the court will refuse to rule.

We shall see; Court watchers determined that the Justices’ questions to litigators arguing for and against the Affordable Care Act thought that it was only a matter of time before the Court drove a stake through the law’s heart.

Counter-intuitive as it may sound, supporters of same-sex marriage rights should hope the Court refuses to rule on the issue or issues a narrow ruling applying only to California. Contentious social issues almost always reach the Court at the height of their divisiveness, and the history of the Court’s intervention into national debates about social issues is a dark one. More often than not, the Court does not resolve disputes when it issues sweeping rulings from the bench rectifying a perceived social ill. Rather, it sets the stage for broader societal conflict around that issue and postpones its ultimate resolution by many years.

When runaway slave Dred Scott sought his freedom and was rebuffed by a series of lower courts, and eventually the Supreme Court, the Justices sought to forever resolve the legal status of African-American slaves. The effect that Dred Scott v. Sanford had on the national dialogue was precisely the opposite. The decision became the subject of heated political debate. The correctness of this decision was a significant issue in the 1860 presidential election. The matter was finally resolved only during the Civil War.