Can the Supreme Court rule on same-sex marriage without legislating morality from the bench?

10 Dec

The Supreme Court will hear to cases together on the issue of same-sex marriage.  First, they will hear a challenge to Prop 8 in California, which makes same-sex marriage illegal through popular referendum.  Second, they will hear a challenge to DOMA, which defines marriage for federal law as heterosexual and also permits states to refuse to recognize same-sex marriage contracts made in other states.  It would seem that come June of next year, the Court will either permit states to restrict same-sex marriage on a state by state basis if they choose to do so (narrow ruling) or it will require that states recognize same-sex marriages as valid across the board (broader ruling).  Among the issues at stake here is the question of whether Supreme Court justices can, should, or will engage in extensive extra-constitutional moral reasoning in deciding these cases.  For those who believe the legislating morality is properly the domain of the legislative branches and not the courts, this would be problematic.  Is it avoidable?  Yes, says Professor Adam Macloud:

one cannot determine how marriage ought to be defined in law without first addressing the question of what marriage is. Therefore, there is no morally neutral ground upon which to decide which relationships should be called marriages.

Nevertheless, there remains a way for the Court to resolve the narrower legal issues presented to it without foreclosing public deliberations on the more profound philosophical questions about marriage. A recent decision out of the United States District Court in Hawaii, in the case Jackson v. Abercrombie, suggests a way for the Supreme Court to move forward without (further) undermining its prestige and integrity. If the Supreme Court is looking for morally neutral ground upon which to stand, it could do no better than to read this decision carefully.

Like California, Hawaiians struck a considered compromise on the marriage question. Hawaii extends to same-sex couples who enter into civil unions all of the rights and privileges of marriage, and reserves the term “marriage” for one-man-one-woman unions. For this reason, the challenge to Hawaii’s laws, like a similar challenge arising out of Nevada and the challenge to California’s Proposition 8 that the Supreme Court is preparing to hear, threatens to lure the judicial branch onto dangerous ground. The courts cannot require these states to recognize same-sex relationships as marriages on the ground that same-sex couples are entitled to the benefits, protections, rights, and responsibilities of marriage; these states have already extended those entitlements to same-sex couples. The only remaining basis for judicial action on behalf of same-sex couples is a ruling that the intimate commitment of a same-sex couple is a marriage. That ruling would codify in the fundamental law of the land in the moral beliefs of judges.

Read the rest here

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