Again? How Could This Happen Again?

Dearest A,

The California Supreme Court struck down a ban on same-sex marriage today. Same-sex couples everywhere rejoiced. Family advocates cursed the courts.

Democrats shook their heads in disbelief. Gay marriage will again become a political topic in a presidential year.

Courts seem to have a tin ear when it comes to politics. Goodridge v. Department of Public Health -- the Massachusetts same-sex marriage case -- came out in November 2003, about a year before the 2004 Kerry-Bush election. Conservative evangelicals used it as a rallying cry, and pundits credited ballot initiatives banning gay marriage in several states with Bush's victory that year.

This California case will almost certainly become a major issue in the presidential election. Should the court have taken that into consideration before issuing its decision?

I think so, for two reasons.

1) Judicial decisions have real-world impact. We lawyers tend to think of the litigation process as an intellectual exercise, one filled with writing and research and arguments, and neglect the effects a decision might have. Roe v. Wade is a perfect example of this -- Justice Harry Blackmun allegedly believed his decision would stir trouble for a few weeks and then quickly blow over. Thirty-five years later, we're still mired in an abortion debate.

Judges aren't deciding things in a vacuum. What they decide could have a major impact on the democratic process. They should take that impact into account, at least when it comes to the timing of decisions.

2) Courts ARE political bodies. The Supreme Court effectively debunked the notion of courts as neutral arbiters with Bush v. Gore. The situation has only gotten worse with the sharp tack to the right our federal courts have taken. With one Supreme Court, the Supreme Court says schools can use race in admissions decisions in Grutter v. Bollinger. In the next, the Court says school districts cannot use race in desegregation plans. Similar facts, two different courts, two different results.

The judges on the California Supreme Court will likely say that they are neutral in this whole gay-marriage political mess. They issued a decision based on the law and the facts, and they issued it now simply because it was finished now. They may well believe it. But if courts are political bodies, as has become apparently clear in the last few years, then judges should, at the very least, embrace that role and think about the political impact of their decisions (see #1).

Love,
Sammy