In our opinion: Judicial clarity on the issue of same-sex marriage

Published: Monday, Dec. 10 2012 12:00 a.m. MST

This June 27, 2012 file photo shows an American flag flying in front of the Supreme Court in Washington.

Associated Press

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The U.S. Supreme Court announced Friday it would review two cases involving the issue of same-sex marriage. We welcome the high court's timely involvement in these cases.

Although its record is not perfect in this regard, the Supreme Court plays its most vital role within our republic when it establishes clear constitutional boundaries for the states, the political branches and the lower courts with regard to complex and contentious political issues. The contested issues surrounding same-sex marriage would benefit from mature judicial clarity.

In the first case, Hollingsworth v. Perry, the 9th Circuit Court of Appeals overturned, on fairly technical and narrow grounds, California's Proposition 8, a popularly enacted amendment to the California constitution that defined marriage as between a man and a woman.

In the second case, United States v. Windsor, the 2nd Circuit Court found the federal Defense of Marriage Act (DOMA) infringed on the Constitution's guarantee of equal protection because of the way it excludes the recognition of same-sex marriages for purposes of federal law.

The justices could assert themselves on the substantive merits of same-sex marriage and find some shrewd way to nationalize this practice that has now emerged in a handful of states. But this is unlikely. Under the leadership of Chief Justice John Roberts, this court has shown a keen awareness of the importance of prudence when reviewing democratically enacted social policy.

Even Clinton appointee Justice Ruth Bader Ginsburg, one of the more liberal justices, has expressed concern about the court getting ahead of public opinion on social issues that are being worked out at the state level. Earlier this year, she spoke openly about the mistiming of the 1973 decision of Roe v. Wade that created a constitutional right to abortion.

Ginsburg suggested that the court's eagerness to make a dramatic change in social policy nationally, even while what she identified as progress for abortion rights was proceeding through normal state political processes, created unnecessary and lasting strife over the issue.

"We'll never know whether I'm right or wrong," said Ginsburg, but "things might have turned out differently if the court had been more restrained."

Same-sex marriage presents a similar dynamic. Given the historic and constitutional role played by the states in licensing marriage, defining spousal obligations and regulating family law, it seems prudent to let the emerging issues related to same-sex marriage develop within the state and common law.

What may prove more problematic for the majority of justices is allowing the federal government to not recognize unions increasingly approved by the respective states (even though there is ample precedent for defining spousal relations differently in federal law than in state law).

What the justices should pay attention to in their review is how democratic lawmaking processes can be truncated when judges overreach. Their order granting review of these cases signaled such a concern. The court specifically asked for additional briefing on whether the courts had jurisdiction to hear these cases.

In both cases the executive branch officials who should have defended the law declined to do so. This may mean that the appropriate litigants and appellants were not before the lower courts. Consequently, the court must now decide if the lower courts even had the constitutional authority to decide these cases.

It would be an understatement to say that much is at stake in these cases. But as foundational issues of democratic process and federalism are weighed against novel approaches to equal protection, we trust this current Supreme Court will provide characteristically mature guidance about the constitutional parameters for how the states may define the legal status of marriage going forward.

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