November 18, 2012

Lincoln, the Supreme Court and same-sex marriage

Waiting for 'public sentiment' to evolve on the side of a principle can be the wisest strategy.

By CASS R. SUNSTEIN Bloomberg News

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President Lincoln, portrayed by Daniel Day Lewis in the new film “Lincoln,” avoided abolishing slavery upon taking office, citing a lack of support that invited backlash.

The Associated Press

Suppose that we agree (as I think we should) that it is unacceptably discriminatory to forbid same-sex marriages -- and that this form of discrimination was no less unacceptable in 1992 and 2002 than it is 2012.

Does it follow that the Supreme Court should have ruled, in those earlier years, that states must recognize same-sex marriages?

Not necessarily. If the court had required states to recognize such marriages in 1992, or even 2002, it would not quite have rejected a "universal feeling," but it would have acted in blatant defiance of widespread moral judgments.

Any such ruling might well have produced a serious backlash and ultimately proved self-defeating.

By short-circuiting public discussion, it would have spurred a serious and possibly successful effort to amend the Constitution to ban same-sex marriage.

Things are different today. Since 2010, polls have found that a majority of Americans support same-sex marriage. The once-unthinkable has happened: An American president has announced that he favors state recognition of same-sex marriages.

On Nov. 6, the citizens of Maine, Maryland and Washington voted to allow such marriages. On the same day, Minnesota voters refused to incorporate the state's existing ban on same- sex marriage into the state constitution.

Same-sex marriage is also recognized in Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont, as well as the District of Columbia.

There is no national consensus in favor of same-sex marriage, but the national consensus against it has disintegrated.

In less than two weeks, the Supreme Court will decide whether to hear one or more of several cases that bear on the question of whether governments can reserve the institution of marriage to heterosexual couples.

This isn't the place for a discussion of the underlying legal issues, which are technical and complex.

But in past years, there was a distinctive reason for judicial caution, rooted in Lincolnian thinking about "public sentiment." In light of continuing movements in that sentiment, that particular argument for caution becomes weaker every day. 

Cass R. Sunstein, the Felix Frankfurter professor of law at Harvard University, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of "Nudge" and, most recently, the author of "On Rumors: How Falsehoods Spread."


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