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U.S. Supreme Court should lead, not follow

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A book by the late physicist Richard Feynman was entitled What Do You Care What Other People Think? If one of the most independent minds of the 20th century worried that he cared too much, then surely the nine justices of the Supreme Court must, too.

After the first of two days of oral arguments on the constitutionality of same-sex marriage, it’s clear the court can’t ignore what other people think — and can’t afford to. Support for same-sex marriage has come from politicians, elected officials, professional athletes and the thousands gathered outside its doors this week. Opposition, though declining, is also passionate.

The March 26 case concerns California’s Proposition 8, which bans same-sex marriage. Voters approved it in 2008, but a state court later ruled it unconstitutional. The state has declined to defend Proposition 8, leaving the task to the law’s proponents.

Several justices questioned whether that was appropriate: The proponents haven’t suffered the particular harm that the law requires of such petitioners. "Have we ever granted standing to proponents of ballot initiatives?" Justice Ruth Bader Ginsburg asked. No, was the answer.

Meanwhile, Justice Antonin Scalia asked when, exactly, banning same-sex marriage became unconstitutional. Was it 1791? 1868? "When did it become unconstitutional to prohibit interracial marriages?" came the answer. "When did it become unconstitutional to assign children to separate schools?"

As usual, the most important justice was Anthony Kennedy, who has written ringing defences of both states’ rights and gay rights. What does the most unpredictable member of America’s most important court do when two of his most cherished principles collide?

Kennedy’s one-word answer, insofar as it can be gleaned from the arguments, is punt.

"I just wonder if the case was properly granted," he said. It’s too soon to know how same-sex marriage will affect society, he said, and rather than require all states to recognize it — or, conversely, outlaw it, or some in-between option — he seemed inclined to dismiss the case.

That would certainly be anticlimactic. Would it also be timid? As we have said, the courts have an honourable 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 per cent 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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