The Supreme Court’s decision to reject all requests for review of lower-court homosexual marriage cases was cowardly and irresponsible. Certainly, it is absurd to call this non-decision, as liberal commentator Cass Sunstein did, a manifestation of “the passive virtues.”
There are two possible reasons for the Court’s avoidance. The less likely is that the justices are waiting for further issue development in the tribunals below. The Court frequently defers considering an issue until that issue has “gestated” throughout the judicial system. In this instance, however, the effect of inaction is to require most states to license same-sex marriages. Tens of thousands of couples will be entering into such unions. If the Court later decides that state provisions banning such marriages have been valid all along, those couples will be left in legal limbo. In that respect, the Court’s non-decision is irresponsible to the point of cruelty.
This is particularly so because it was the justices’ pretentious pontificating in last year's case of United States v. Windsor that helped create this mess.
There is a more likely reason for the Court’s dodge: It was designed to legalize same-sex unions nationwide, while avoiding a hearing or a formal legal opinion. If this is the correct explanation, it was a cowardly and contemptuous way of treating the “separate and independent sovereigns,” as Chief Justice Roberts has described the states. It also is an extraordinary manner of altering a fundamental, ancient, and revered institution.
Since the 1960s, the Court has emitted a burst of decrees imposing a code of liberal/secular social and sexual mores on Americans, despite previous popular rejection. (Advocates of traditional marriage won 32 of the 34 state constitutional referenda on the subject, mostly in landslide victories, and all within the last 16 years.) All of these decrees, except the latest, have been accompanied by written opinions whose common characteristic has been weak and specious analysis—well below the standards the Court applies in other kinds of cases. Decisions like Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, Romer v. Evans, Lawrence v. Texas, U.S. v. Windsor, and the plurality opinion in Casey v. Planned Parenthood have relied on doctored history, factual omissions, and obvious constitutional mistakes. In the Windsor case, the holding was not based clearly on any specific constitutional provision at all. In each of these opinions, the Court stuffed the holes with pious sermonizing or rhetorical bombast.
Now, it appears, the Court has simply given up. No need to justify your decisions if you can govern by mere decree.
Make no mistake: This is a development of major importance. That it will have wide social consequences is generally understood. What is not generally understood is that the Court’s high-handed maneuver will trigger enormous political consequences as well.
Rob Natelson was a law professor for 25 years and now serves as Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver. His constitutional publications have been cited 16 times in four separate Supreme Court cases since 2013.