- - Monday, October 6, 2014

In Shakespeare’s Henry IV, Part 1, Falstaff defends his cowardice by lecturing, “‘The better part of valour is discretion; in the which better part I have saved my life.”

Monday, the U.S. Supreme Court correctly followed Falstaff’s instruction by avoiding a ruling on whether the Constitution recognizes a right to same sex marriage. It denied seven petitions raising the question.

The temporizing prevented the appearance that the high court was eager to pursue a social agenda in the manner of the Roe v. Wade abortion decree and thus risk a political backlash. It also prevented an ill-conceived opinion by Associate Justice Anthony Kennedy which would have wreaked havoc in constitutional jurisprudence.

It is a virtual certainty that within a few short years, federal appeals courts throughout the nation will sustain a constitutional right to same sex marriage based on the Supreme Court’s decision in United States v. Windsor. There, the court held unconstitutional section 3 of the federal Defense of Marriage Act, which discriminated against lawfully recognized same sex marriages in some states in favor of heterosexual matrimony. Three appeals courts have already voided same sex marriage bans in Indiana, Wisconsin, Utah, Virginia and Oklahoma. Only a single stray federal district court in Louisiana has upheld a state ban in the aftermath of Windsor. Same sex marriages will be recognized throughout the United States even without a Supreme Court pronouncement.
The short delay is justified. The injury to same sex couples will be unalarming. If they reside in a jurisdiction that refuses recognition, they can move to one of the many states that do. At that point, the Full Faith and Credit Clause of the Constitution would protect their marital status wherever they reside. Further, many states have enacted civil union statutes that grant same sex couples many if not all of the privileges of marriage. The Supreme Court in Lawrence v. Texas also voided all laws against homosexual sodomy.

The court’s avoidance will preserve its limited political capital to cases where the need to thwart majoritarian sentiments or to protect minorities are at their zenith. Gays and lesbians enjoy full political rights. They have proven effective in state legislatures and in popular referendums. They have demonstrated an ability to raise substantial campaign funds. Republican Paul Singer, for instance, has contributed and raised more than $1 million for gay and lesbian rights. And mega-billionaire Michael Bloomberg has similarly donated handsome sums to support the cause.

A Supreme Court interpretation finding a constitutional right to same sex marriage would make bad law. The Constitution’s architects would have found such a construction preposterous. That understanding of the framers is not conclusive. But nothing in the text or history of the Constitution hints at a right to same sex marriage.

Justice Kennedy’s opinions in Windsor and Lawrence provide a preview of a would-be same sex marriage decision that is disturbing. In Windsor, the justice insisted that detractors aimed to demean or degrade same sex couples, simpliciter. That assertion insults half of the U.S. population whose reservations are divorced from sheer bigotry. If there are better ways for the Supreme Court to disturb domestic tranquility than to make such an inflammatory remark, they do not readily come to mind.

In Lawrence, Justice Kennedy philosophically observed as regards marriage, among other things: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Under that zany, psychedelic interpretation of liberty, John Dillinger could have argued a constitutional right to rob banks because it defined his own meaning in life and concept of the universe.

The right thing at the wrong time or in the wrong way is the wrong thing. The Supreme Court thus rightly refrained today from opining on a constitutional right to same sex marriage.

For more information on Bruce Fein, visit brucefeinlaw.

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