Social issues in the courts

Congress, not the courts, should set policy regarding same-sex marriage.

Daily Editorial Board

Amid much public fanfare, media coverage and a stream of profile-picture changes, the Supreme Court heard oral arguments in two cases involving same-sex marriage at the end of last month.

The first involves California’s Proposition 8, a ballot referendum that effectively overturned a California court decision that ruled that the California Constitution guaranteed same-sex marriage. Prop 8 was then challenged in federal court as violating the 14th Amendment. It was not the State of California that defended the proposition but a coalition of groups that had supported the ballot proposition.

The second case involves the Defense of Marriage Act that denies federal benefits to same-sex partners even if their marriage is recognized by their state. The petition for certiorari was filed by the United States, seeking affirmation of a Second Circuit decision that overturned the law. An intervening group was organized by the House of Representatives to defend the law when the Obama administration refused to defend the law’s constitutional validity.

Both cases are therefore about more than simply the right for same-sex couples to marry and to receive the benefits that accompany legal marriage. Complex issues reduce the Supreme Court’s ability to effectively decide on this situation.

The Court seems to be unwilling to address the question of same-sex marriage in the Proposition 8 case on the grounds that private actions — where citizens are able to address that a law is not being enforced — are not generally allowed in the federal system.  However, in the DOMA case, the Court seemed more apt to accept the standing of the U.S. to seek affirmation.

As a result, it indicates that the Court will not have to decide if the right to same-sex marriage is guaranteed by the Constitution, but it will be able to rule on the federalism questions presented in the DOMA case. In these cases, it seems that the legal questions of standing are being unduly influenced by policy considerations.

Although divided government clearly ties up the legislative process — either a single chamber blocks legislation of the other or the executive branch blocks legislation of Congress — it is now tying up the judicial process. It is difficult for the Court to rule on the real questions presented by the parties seeking redress for injuries in trial court because of internal disagreement of the government.

In fact, one might argue that divided government puts these issues in front of the Court in the first place. Same-sex marriage has achieved the support of a majority of the citizens in the U.S. and the support of the president — even though the Electoral College stands between the president and popular election. However, the majority of members in the House of Representatives have not yielded to public opinion.

Policy considerations are the prerogative of the legislature — not of the courts. Although policy may run up against constitutional issues that may constrain such policy choices, it is not primarily the role of the Court to consider policy — as forcefully affirmed by Chief Justice John Roberts in the Patient Protection and Affordable Care Act ruling last summer. The Court is not and should not be an unelected, life-term, super-legislature as the cases chosen to hear this term have begun to indicate.

As originally conceived and reiterated in Marbury v. Madison, by Alex de Tocquville, and by Abraham Lincoln, the Court exercised judicial review because it was essentially forced to in order to decide on a case. With the advent of the certiorari process, the Court can choose not to decide a case, corrupting these arguments and bringing it close to an undemocratic super-legislature.

Under the “Obamacare” ruling’s logic, it is somewhat conceivable that the injury at stake in the DOMA case is essentially over part of the tax code, which applies to people discriminatorily in many cases — wealth being another popularly salient way — and therefore constitutional.

While distasteful and poor policy, ultimately the policymaking body — the Legislature — should most properly resolve the DOMA issue. Instead of deciding policy issues as has become common-place this term, the Court should focus on apportionment as alluded to, but not at issue, in the Voting Rights Act case heard earlier this term. Such consideration could begin to alleviate not only the marriage issue but also reduce the legal problems that have arisen from divided government and the need for the Court to act as a super-legislature.