Yesterday, the Supreme Court basically legalized gay marriage by refusing to hear any of appeals of federal and Appellate Court decisions to legalize it. Writing for FiveThirtyEight, Nate Silver noted that with the refusal the Supreme Court just legalized gay marriage in 30 states and a majority of the US population.
The Supreme Court under Roberts (the Robert’s Court) has not shied away from tough decisions. The court struck down campaign finance restrictions in Citizens United in 2010 and Shelby in 2013. In 2012 the court upheld most of Obamacare and in 2013 struck down DOMA, Section V of the Voting Rights Act and the Contraception Mandate as it applies to those with religious objections. So why did the court not want to take up gay marriage?
If you are a bit of a conspiracy theorist you might like the idea that the Court could not come to a consensus on the issue. It is fairly reasonable to say the four conservative Catholics on the court would have sided against and the four liberals for. Indeed, in Windsor, where DOMA was struck down, the four conservative justices dissented but they did so on a jurisdictional basis. The court’s conservatives did not want to strike down through judicial fiat democratically elected laws.
Kennedy, the swing vote on the court, marginally a conservative, is a solid social conservative on abortion but when it comes to racial discrimination and gay marriage he is much more nuanced. He sided with the four liberal justices to strike down DOMA even as he helped eliminate Section V of the VRA soon after. Perhaps the conservatives on the court did not feel they had jurisdiction to decide the case.
Another reason might have to do with the court striking down DOMA. In the justices minds Windsor signified their opinions on gay marriage. Or, yet another reason. the court did not want to get dragged down into the mud with an ultimate decision on gay marriage.
Ultimately, however, I think a decision made over 40 years ago made their decision. I speak of the 1973 decision in Roe vs. Wade where the Blackmun Court mandated abortion on all fifty states in America. This decision has roiled our politics for forty years and continues to do so. It created a cultural clash that has turned abortion, contraception and women’s rights into wedge issues that have turned into campaign fodder,
The Robert’s Court has consistently kept its decisions narrow for a reason unlike the broader mandates of the Warren, Blackmun and Rehnquist Courts that have come before. For example, under Roberts campaign finance laws still stand largely intact and the bulk of the VRA is still in force. Taken in this context it is not surprising the court decided not to mandate gay marriage/no gay marriage on all fifty states. While the Supreme Court has the ability to shape social forces much as the Warren and Blackmun courts did on civil rights and abortion and the Rehnquist court did on economic and racial issues (another article) there are those courts that do not seek to do the same. The Robert’s Court is one of those courts.