Why the Supreme Court shouldn't let voters decide on gay marriage

Yesterday, the Supreme Court heard oral arguments in Obergefell v. Hodges, the long-anticipated challenge to the constitutionality of state bans on same-sex marriage. One particularly interesting takeaway is the extent to which opponents of same-sex marriage are in retreat. Instead of offering positive defenses of limiting marriage to heterosexual couples, they fell back on that reflexive conservative defense: that the issue should be decided by voters. But unfortunately for them, these arguments are far too weak to prevent the court from holding that the bans are unconstitutional.

John J. Bursch, the lawyer charged with defending the bans, began with the rather strange argument that there was a "fundamental liberty interest" for individuals in giving their states the right to define the institution of marriage. Justice Antonin Scalia, the arch-conservative who is adamantly opposed to same-sex marriage and enjoys making homophobic jokes in court, attempted to state the point in a somewhat more defensible form, drawing a distinction between judicial decisions and popular self-government. When state courts rule same-sex marriage bans unconstitutional, Scalia asserted, "that's not the people deciding it. It's judges deciding it." At other times, Scalia described the argument of the states as "leave it to the people."

The point has a certain superficial appeal. Given how deeply entrenched the traditional definition of marriage had been — a point the conservative justices returned to again and again, citing millennia of human history — doesn't it make sense for the change in definition to come from the people themselves, rather than having unelected judges make it?

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The appeal of the argument is just that: superficial. It either begs the question or advances a conception of judicial review that no justice of the Supreme Court actually shares.

Making a distinction between "the people" (as represented by legislators) and "judges" is misleading. In the American system of government, legislative enactments, state initiatives, and constitutional amendments are subject to judicial review. The only question is whether judicial review is appropriate in a particular case.

And in this case, the case for striking down the bans on same-sex marriage is compelling. The Fourteenth Amendment requires that invidious, discriminatory state classifications be justified by a compelling state interest, something that is plainly lacking in this case. Indeed, protecting a minority from such discrimination is an example of when judicial review is most defensible.

It is possible to argue that the courts should only strike down statutes when contrary constitutional text is unambiguous. But this argument is certainly not available to the conservatives on the Supreme Court. When you've written or signed opinions gutting the most important civil rights legislation since Reconstruction without any discernible basis in the text of the Constitution, it's pretty hard to argue that exercising judicial review is inherently undemocratic.

In a related example of sophomoric democratic theory, Chief Justice John Roberts repeated a familiar argument that for the Supreme Court to decide in favor of the rights of gays and lesbians would be counterproductive for gays and lesbians. "Closing the debate can close minds, and it will have a consequence on how this new institution is accepted," asserted the chief justice. "People feel very differently about something if they have a chance to vote on it than if it's imposed on them by the courts."

This has been a common refrain whenever a previously disadvantaged group wins constitutional victories in the courts. The only problem is that the argument makes little sense in theory and has been proven wrong in practice. There's no evidence that the public is more hostile to social changes produced by the courts than by legislatures. And it's particularly strange to assert this hoary claim in the context of same-sex marriage. The courts have long played a major role in states ending marriage discrimination, which has led to predictions that the backlash would increase opposition to same-sex marriage. What happened, of course, was the opposite — public support for same-sex marriage has only increased.

Admittedly, there are a few states where a Supreme Court decision striking down bans on same-sex marriage would be unpopular. But these are also jurisdictions where, absent judicial intervention, ending marriage discrimination would probably take decades. Making gays and lesbians wait that long for their fundamental rights to be recognized in order to prove an almost certainly erroneous point about democratic procedures is not very attractive.

The argument that a judicial opinion striking down same-sex marriage bans is inconsistent with democratic values is not very convincing. And yet, when you consider the other arguments advanced by gay marriage opponents in amicus briefs — an unhealthy stew of illogic, bad science, double standards, and unfounded speculation — it's the best line of argument they have.

It's an argument that is overwhelmingly likely to lose, and richly deserves to.