The New York Times | July 3, 2010
ELENA KAGAN uttered neither the word “gay” nor “marriage” in her opening statement at the Senate confirmation hearings on her nomination to the Supreme Court, but she addressed the issue nonetheless. No, she didn’t say how she will vote when gay marriage comes before the court, as it may soon. What she did say was this:
“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”
Ms. Kagan may not have had gay marriage in mind when she made that statement, but it could not be more relevant. She seems to be saying that protecting minority rights is the Supreme Court’s job description, but also that a civil rights claim doesn’t automatically trump majority preferences. This is something absolutists on both sides of the gay marriage debate don’t like to hear, but it has the virtue of being right.
While the Senate considers Ms. Kagan’s nomination, Judge Vaughn Walker of the United States District Court in San Francisco is deciding how to rule in a major lawsuit challenging Proposition 8, the 2008 ballot initiative that revoked and banned same-sex marriage in California (while leaving the state’s marriage-like domestic partner program intact). Judge Walker may declare that the United States Constitution gives gay couples the right to marry — a decision sure to start a political firestorm (possibly just in time to give the Democrats an additional headache in this year’s midterm elections). Whatever he decides is likely to be appealed, presumably up to the court that Ms. Kagan seems likely to join.
This case is not primarily about the merits of gay marriage. It is primarily about who gets to decide. The plaintiffs say marriage is a civil right, and when a civil right is assailed, the Supreme Court has no choice but to take command. If the Supreme Court doesn’t protect minority rights, it abdicates its job.
Proposition 8’s defenders retort that gay marriage is not a civil right, because it is not marriage, or not marriage as defined by most Californians. If the court does not defer to the voters’ wishes, it oversteps its bounds.
Ms. Kagan seems to reject both forms of absolutism. Civil rights, she implies, are important, but so is judicial modesty, and a sensible judge balances the two. A sensible judge can say something like, “Same-sex marriage may indeed be a civil right, but not all civil rights demand immediate judicial intervention, and other important interests militate against imposing this one on the whole country right now.”
Viewed in that light, the argument for upholding California’s gay marriage ban has merit — not because the policy is fair or wise (it isn’t) but because it represents a reasonable judgment that the people of California are entitled to make. Barring gay marriage but providing civil unions is not the balance I would choose, but it is a defensible balance to strike, one that arguably takes “a cautious approach to making such a significant change to the institution of marriage” (as the lawyers defending Proposition 8 write in one of their briefs) while going a long way toward meeting gay couples’ needs.
I say this knowing how deeply it stings gay Americans to let states make invidious choices. In June, my partner, Michael, and I married in the District of Columbia. But every time I commute from my office in Washington to my home in Virginia, my marriage magically dissolves like some matrimonial Cheshire Cat, because Virginia constitutionally bans any recognition of it. What straight couple would tolerate that?
Shortly before we married, we visited a lawyer who explained that it would cost thousands of dollars to draw up documents protecting us in states that, like Virginia, treat us as legal strangers — documents making Michael my heir, giving him access to my hospital room, allowing him to make financial decisions should I be incapacitated. Even so, our pricey paperwork could replicate only a few of the perquisites of marriage, and only imperfectly at that. This is how second-class citizenship feels.
But the gay-marriage debate, while assuredly a civil rights argument, is much more than that. It is also a debate about the meaning of marriage, about the pace of change in a conflicted society and about who gets to decide. Whatever the activists on both sides say, nothing in the Constitution requires the Supreme Court to short-circuit the country’s search for a new consensus, either by imposing gay marriage nationwide or by slamming the door on it with an aggressively dismissive ruling. Sometimes the right answer for the courts is to step aside and let politics do its job.
In her testimony, Ms. Kagan described the Supreme Court as “a wondrous institution” and the democratic process as “often messy and frustrating.” She was right, as every veteran of a civil rights struggle can attest. But she was also right to say that the court should be “properly deferential to the decisions of the American people and their elected representatives.” If she can turn those platitudes into a jurisprudence that respects both gay equality and judicial modesty, she will be unpopular on both sides of the marriage debate — and correct.
