Deciding on Silence on Gay Marriage
Many people are stunned by the U.S. Supreme Court's refusal to review any of the recent lower-court decisions requiring states to recognize same-sex marriages. They shouldn't be. The court's silence is a fresh tribute to what Yale law professor Alexander Bickel, writing in the early 1960s, called "the passive virtues." For the Supreme Court, not to decide is often the best course, especially when the nation is sharply divided.
Bickel was no critic of the liberal Warren Court of the time. He vigorously defended Brown v. Board of Education, striking down school segregation. More broadly, Bickel believed that the court had an important national role as the arbiter of what was required by constitutional "principle." Nonetheless, he thought that the justices had to be both humble and strategic. An aggressive insistence on vindicating fundamental principle could tear the country apart -- and undermine the justices' own goals in the process.
Whenever the court invalidated the acts of Congress or state legislatures, it could produce a terrible backlash, Bickel pointed out. But whenever the court validated such acts, it could legitimate them -- and thus add its apparent support. On issues that fiercely divided the country, Bickel insisted that it was sometimes appropriate for the court neither to validate nor to invalidate, but instead to stay its hand. He went so as far as to approve of the court's 1956 decision not to decide a case involving a ban on racial intermarriage.
In the context of gay-marriage prohibitions, there is a further consideration. In every one of the cases recently under review, lower courts struck down the bans. For those justices who agree with those courts, why, exactly, would it be necessary to intervene now?
For many decades, liberals and conservatives alike have wanted the Supreme Court to settle the most contested moral issues, whether they involve affirmative action, property rights, guns, or discrimination on the basis of age and disability. And it is likely that before long, the court will indeed resolve the same-sex marriage question. But what is true for ordinary life is also true for constitutional law: Silence can be golden.
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Cass R Sunstein at firstname.lastname@example.org
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