U.S. Supreme Court takes a pass

The court’s decision was probably wise. But sometimes, wisdom is overrated.

On Monday, the U.S. Supreme Court ignored an attempt by conservative groups to strike down the Massachusetts Supreme Judicial Court’s decision allowing same-sex marriage in that state. In choosing not to hear Largess v. Supreme Judicial Court of the State of Massachusetts, the U.S. Supreme Court both acted wisely and backed away from a tenuous issue.

The Massachusetts Supreme Judicial Court opined in Goodridge v. Department of Public Health that both the Massachusetts Constitution grants all people the right to share in society’s “most rewarding and cherished institutions.” As such, any law abridging that right is invalid.

The groups’ main claim was the decision denied Massachusetts residents “a republican form of government,” as guaranteed by the U.S. Constitution, because the Massachusetts Supreme Judicial Court justices are not elected. This is a standard judicial activism claim: When a non-elected body effects a sweeping policy change, it usurps power.

Courts, including the U.S. Supreme Court, have made similar decisions for the better part of the last century. In essence, the conservative groups sought to strike down the widely accepted core of civil rights jurisprudence: Courts are the rightful arbiters of individuals’ rights. From this vantage point, the U.S. Supreme Court was right to decide against hearing the case.

On the other hand, sometime soon, one of the same-sex couples married in Massachusetts will go to another state and demand their marriage be recognized there per the U.S. Constitution’s “full faith and credit” clause. Such recognition would be prohibited by the Defense of Marriage Act.

This will raise two questions: Does the 14th Amendment’s due process clause give same-sex couples a federal right to marry? Even if not, is the Defense of Marriage Act unconstitutional? These are important questions that wrap equality, morality, federalism and even democracy into a snug legal jack-in-the-box.

The U.S. Supreme Court’s decision to stay out of the issue was probably wise. It’s possible, if unlikely, that society will come to a consensus on this issue without the Court’s help. But we can’t justify telling committed same-sex couples to “just have patience” – and sometimes wisdom is overrated. As such, the U.S. Supreme Court should have agreed to hear case.