The Supreme Court of Consensus?

Color me just a little puzzled by today’s editorial from Bloomberg on the two-case review this week at the Supreme Court over the constitutionality of the traditional definition of marriage.  According to my admittedly limited study of civics and the law, the Supreme Court’s role in American jurisprudence is to make judgments based on the US Constitution and precedent, and some would argue I should have stopped before the “and.” According to the editorial team, however, it’s now the Supreme Court’s role to weigh societal “consensus” when reviewing cases:

After the first of two days of oral arguments on the constitutionality of same-sex marriage, it’s clear the court can’t ignore what other people think — and can’t afford to. Support for same-sex marriage has come from politicians, elected officials, professional athletes and the thousands gathered outside its doors this week. Opposition, though declining, is also passionate. …

The cavalcade of opinion in support of same-sex marriage has surely affected the court. About half the public supports it, with the figure rising to 70 percent among Americans younger than 30, indicating the way forward. Few justices can doubt that the freedom to marry will expand nationwide — and soon.

How much deference do the justices owe the public? Getting too far ahead of popular opinion can undermine the court’s legitimacy. So can trailing too far behind it. The reason proceedings like these are public is that the court is as interested in forging consensus as following it. It’s also why, even more so than other public institutions, its reasoning matters.

This is complete nonsense.  All of this would be true if we were a nation whose laws were handed down by judges — but we’re not.  If a “consensus” has been reached on government policy, then the appropriate forum for that consensus to produce law is in the legislature, or by direct referendum.  And in fact, that’s exactly what the voters in California did with Proposition 8 on a matter of public policy.

The editorial team at Bloomberg seem confused about that point, too:

With each passing day, an increasing number of Americans views the right to marry, for gays and straights alike, as among “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.”

That’s not wording from the latest poll. It comes, only slightly out of context, from a 10-year-old Supreme Court decision on gay rights.

True — but not relevant.  The choice of sexual partners and practices is (with some exceptions) a very private matter, which was the basis of the Lawrence decision a few years back.  Government recognition of those choices through the licensing of marriage is not an “intimate and personal choice.”  Government licensure is a public act, which means that the public has the right to set those parameters within the bounds of the Constitution.  (That, by the way, was why the Loving case succeeded, as it should have; the bar on interracial marriage directly contradicted the 14th and 15th Amendments.)

If the consensus is so clear on the public policy, then advocates for same-sex marriage should pursue their goals in the legislatures and by referenda, not in courts to dictate public policy on the basis of privacy.

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