Outside the Beltway

A Thought Experiment

Steven L. Taylor
18

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Here’s my question:  when (because I think it will be when, not if) the Supreme Court of the United States decides that same-sex marriage is constitutional via the 14th Amendment’s equal protection clause (or whatever mechanism) and various state laws (including referenda in various states that passed by large majorities) are struck down, will we see the same amount of respect for judicial review as we are seeing now from the opponents of the PPACA?  If we have a Republican president at that moment in time will said president refrain from commenting on the case while it is being deliberated upon?  Will the proponents of same-sex marriage be concerned that the judiciary is unelected?  Will Democrats in Congress opine about the size of the majorities that voted against same-sex marriage in various states?  Who will be crying “judicial activism!” then?

Or, as I was contending the other day, will policy preferences of citizens, politicians, and pundits shade their view of the process?

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18 responses to “A Thought Experiment”

  1. legion Avatar
    legion

    This is rhetorical, right?

  2. Chad S Avatar
    Chad S

    Andrew Cohen summed it up well here:

    http://www.theatlantic.com/national/archive/2012/04/the-losing-argument-for-the-defense-of-marriage-act/255364/

    Congress has no constitutional authority to punish people who don’t want to have health insurance, Paul Clement argued last week before the United States Supreme Court. This week? The heralded attorney is arguing, to another panel of federal judges, that Congress has plenty of constitutional authority to punish people who don’t want to marry someone of the opposite sex. Last week, Clement defended states’ rights and labeled as “unprecedented” the federal health care policy. This week, he says that Congress can dictate terms of a federal marriage policy over the objections of states which have legalized same-sex marriage.

    Welcome to the forlorn world of the Defense of Marriage Act

  3. Ken Avatar
    Ken

    when (because I think it will be when, not if) the Supreme Court of the United States decides that same-sex marriage is constitutional via the 14th Amendment’s equal protection clause (or whatever mechanism)

    Nitpicking about language time: I think you mean “decides that laws prohibiting same-sex marriage are unconstitutional . . . .” I don’t see how a court would evaluate whether same-sex marriage is “constitutional,” unless the evil lib’ruls pass that law requiring everyone to gay marry like I’ve been hearing they will.

    Pardon the pedantry, this is a pet peeve.

  4. Kit Avatar
    Kit

    I guess that should we get a 5-4 ruling along party lines in favor of same-sex marriage, then, yes, we will hear cries about judicial activism.

  5. Vast Variety Avatar
    Vast Variety

    To answer your question you only have to look what happened to the Iowa Supreme Court when they rightfully rules that Iowa’s ban on same-sex marriage was a violation of the state constitution.

  6. Hey Norm Avatar
    Hey Norm

    Chad S. links to one example of Clements inconsistency in interpreting the Constitution depending on his immediate ideological needs.
    Sahil Kapur has another great example of the same thing that is required reading.
    http://tpmdc.talkingpointsmemo.com/2012/04/how-the-gops-lawyer-paul-clement-helped-defend-obamacare.php?ref=fpb
    So in answer to SLT’s question: F’ yeah they will.

  7. Chefmarty Avatar
    Chefmarty

    If we hear stupid questions from the SCOTUS bench, say, drawing false equivalence between things like polygamy & same sex marriage, (i.e., the broccoli mandate), then yes, we’ll have political folks (correctly) questioning the motives of some of our final arbiters of justice.

  8. Tsar Nicholas Avatar
    Tsar Nicholas

    Interesting hypothetical. Not sure about the use of the term “when.”

    Scalia, Thomas, Alito, Roberts, Kennedy. That there are 5 votes which take that “when” and turn it into “not happening.”

    Speaking of which, what if Diebold elects Romney? Kidding. What happens if the job market tanks over the summer and Romney eeks out a victory over Obama? Let’s say Romney replaces Ginsburg with, oh, say, Jennifer Elrod of the 5th Circuit and that Kennedy retires and Romney replaces him with, oh, say, Jerome Holmes of the 10th Circuit. Or Diane Sykes of the 7th Circuit. Or Allison Eid of the Colorado Supreme Court. Or Neil Gorsuch of the 10th Circuit. Or Paul Clement. Or Brett Kavanaugh of the D.C. Circuit.

    Then you’d have Scalia, Thomas, Alito, Roberts, ________ and ________. That would be 6 votes in the “not happening” camp. Thomas, Alito, Roberts, __________ and ________ collectively would be young enough to serve together for a decade or more.

    That all said, I’m an atheist and sort of a crypto libertarian on social issues. I really couldn’t care less whether gays and lesbians are marrying each other. More power to them.

    Oh, one question, however: What if the SCOTUS says that civil unions are mandatory but that state laws proscribing civil “marriage” are not unconstitutional and thus are OK? Would that be a case of “judicial activism?” Or that of “judicial restraint?”

  9. Vast Variety Avatar
    Vast Variety

    @Tsar Nicholas: Your counting Kennedy on the wrong side of the equation there.

  10. An Interested Party Avatar
    An Interested Party

    Scalia, Thomas, Alito, Roberts, Kennedy. That there are 5 votes which take that “when” and turn it into “not happening.”

    No one lives forever…and Vast Variety makes a good point…just as Kennedy was a driving force behind Lawrence v. Texas, he could very well serve the same role in a case about SSM…

    I really couldn’t care less whether gays and lesbians are marrying each other.

    Funny how a lot of people who make this claim also seem to argue for all the conservative reasons why SSM won’t be legalized nationally anytime soon…

  11. Eric Avatar
    Eric

    @Tsar Nicholas:

    Why do you believe that these conservative justices will stop the ban on same-sex marriage? The Supreme Court for all its existence have done a fairly well job on ruling in rather social policy cases (there are few exceptions to this, namely the most prominent that comes to mind is Dred Scott v. Sanford, but that case was in the decision that a slave was at the time considered property, hence a legislative policy issue). To say that the conservative justices would not do their job and make up some political BS reason on not accepting same-sex marriage is something I believe will not happen.

  12. Jerry Johnson Avatar
    Jerry Johnson

    As a constitutional scholar, if not as president, is it not irresponsible to use such rhetoric in regards to the Supreme Court? To take a “how dare they, who do they think they are” approach, as president and constitutional scholar shows that Hyperbole is the preferred method of communication with this administration.

  13. An Interested Party Avatar
    An Interested Party

    As a constitutional scholar, if not as president, is it not irresponsible to use such rhetoric in regards to the Supreme Court?

    I had no idea that Supreme Court decisions were written on stone tablets that came down from Mount Sinai….perhaps in the future no one should dare to have any opinion about anything the Supreme Court does…I mean, constitutional scholars in particular should know this…

  14. al-Ameda Avatar
    al-Ameda

    First off – in his 2nd term, Obama will not get the chance to nominate a liberal replacement for a conservative justice, so this hypothetical is not going to happen. This is a 5-4 conservative movement Court.

    Will, as you suggest, liberals be shown to be hypocrites if the Court “decides that same-sex marriage is constitutional via the 14th Amendment’s equal protection clause (or whatever mechanism) and various state laws (including referenda in various states that passed by large majorities) are struck down…” ? No, not really.

    Conservatives seem really sensitive about being called “judicial activists” – they want to be “judicial activists” in service of their ideology, but they prefer to dress it up in “Originalist” or “Strict Constructionist” drag.

  15. Steven L. Taylor Avatar
    Steven L. Taylor

    @al-Ameda:

    Will, as you suggest, liberals be shown to be hypocrites if the Court “decides that same-sex marriage is constitutional via the 14th Amendment’s equal protection clause (or whatever mechanism) and various state laws (including referenda in various states that passed by large majorities) are struck down…” ? No, not really.

    So, you don’t think that persons, such as the president, who are currently arguing for the merits of elected bodies over appointed ones will take the same position on legislation and referenda passed at the state level that ban gay marriage?

  16. al-Ameda Avatar
    al-Ameda

    @Steven L. Taylor:

    “So, you don’t think that persons, such as the president, who are currently arguing for the merits of elected bodies over appointed ones will take the same position on legislation and referenda passed at the state level that ban gay marriage?”

    No, I do not believe that elected bodies should be permitted to deny people equal protection as enumerated under the law. Not every decision an elected legislative body makes is legally defensible.

  17. Steven L. Taylor Avatar
    Steven L. Taylor

    @al-Ameda:

    No, I do not believe that elected bodies should be permitted to deny people equal protection as enumerated under the law. Not every decision an elected legislative body makes is legally defensible.

    I agree with you. I think you are misunderstanding my statement.

  18. grumpy realist Avatar
    grumpy realist

    Well, I have to say that in the recent Prometheus decision it didn’t look like ANY of the judges knew what they were deciding. (OK decision for the first two-thirds, then Kennedy ran off the rails.)

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