Pomp & Circumstances | Commonweal Magazine

Equal protection would have been a clearer basis for compelling states to allow same sex marriage; the vague due process rationale does not help insured compliance rather than resistance; nor does it clarify who can be compelled to do things to which they object on conscience grounds either bake a cake or conduct a marriage ceremony. - gwc
Pomp & Circumstances | Commonweal Magazine
by Prof. Paul Horwitz (University of Alabama)

For those of us who believe in equal rights under the law for gays and lesbians, and who also favor legal same-sex marriage, the Supreme Court’s landmark decision in Obergefell v. Hodges is a victory. One could rest there and say no more. Before we analyze victories, first we celebrate them. The joy and tears of millions of gay and straight Americans over the past two weeks is testament that many had cause to celebrate.

In our culture wars, however, each milestone is just the prelude to the next conflict. There is rarely time to reflect calmly on the various meanings of such events. Too many commentators immediately seek to fix the “real” meaning of the case and secure the strategic high ground for the next battle. That’s too bad. Despite some positive aspects, Obergefell raises many questions and contains some serious flaws.

For those who support same-sex marriage, Obergefell is definitely a victory. But the victory is not primarily one for the Supreme Court—or for Justice Anthony Kennedy, who wrote the opinion. The decision is largely about a change in social consensus. As demonstrated by the opinion’s lengthy list of state laws and judicial decisions allowing same-sex marriage, the Supreme Court was hardly the prime mover in making marriage equality a legal reality. Indeed, the Court spent years avoiding the fundamental question of same-sex marriage’s constitutionality, waiting for public opinion to shift until its decision was virtually preordained. There are heroes in this story; some are even lawyers. But not necessarily the ones who sit on the Court. The real heroes are the many men and women whose public “coming out,” often at risk of disparagement, disinheritance, and even physical harm, transformed national sentiment. The Court’s role was secondary.

The Court certainly plays a role in turning social change into legal fact. But that role is less romantic than anything in Kennedy’s opinion suggests. He hints at this point when he recounts the history of the gay rights movement, writing that “questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law.”

Substitute “must” for “could”—an important change—and you have a description of the Court’s proper role. Constitutional phrases like “equal protection of the laws” are not self-explanatory. They require judicial elaboration. And Supreme Court decisions have to be applied by a vast number of lower court judges and government officials. Its decisions must strive for clarity and predictability. Judges and officials should be able to apply them easily and consistently, rather than having to anticipate the mood of particular sitting justices.