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Editorials

March 27, 2013

EDITORIAL: Gay Marriage Will Survive Whatever the Supreme Court Says

(Continued)

That would certainly be anticlimactic. Would it also be timid? As we have said, the courts have an honorable tradition of dodging sticky questions, and in this case the consequences wouldn't be catastrophic. Dismissing the case — or ruling that the challengers lack standing — would leave same-sex marriage legal in California, as it would be in nine other states and the District of Columbia. If it were to let the lower-court decision stand, the court could signal support of same-sex marriage while still allowing time for public opinion to settle the matter.

Which brings us back to Richard Feynman's question. The cavalcade of opinion in support of same-sex marriage has surely affected the court. About half the public supports it, with the figure rising to 70 percent among Americans younger than 30, indicating the way forward. Few justices can doubt that the freedom to marry will expand nationwide — and soon.

How much deference do the justices owe the public? Getting too far ahead of popular opinion can undermine the court's legitimacy. So can trailing too far behind it. The reason proceedings like these are public is that the court is as interested in forging consensus as following it. It's also why, even more so than other public institutions, its reasoning matters. It's all well and good for a politician to change his mind on same-sex marriage because he has a gay relative. That's not reason enough for a Supreme Court justice.

With each passing day, an increasing number of Americans views the right to marry, for gays and straights alike, as among "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy."

That's not wording from the latest poll. It comes, only slightly out of context, from a 10-year-old Supreme Court decision on gay rights.

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