Time to Let Mr. Justice Kennedy Decide Again

So apparently the Prop 8 intervenors will be allowed to defend the measure on appeal from the federal district court in which it was struck down. That means appeals will happen, which means that the Supreme Court will hear the case. Which means that it will all boil down to Justice Kennedy's particular inclination in this case. As usual, as it will be with the health-care law, as it was with Citizens United and DC v. Heller. As it will be until some Justice gets replaced by a President of the opposing party. I believe in the idea of constitutional law that is actually about law and truth and justice and all that, and not just nine people voting based on clear political preference, but the recent Courts have clearly not been living up to that standard. In any event, the law is obviously unconstitutional, I have a fair amount of hope that Kennedy is feeling ready to accept that fact, and I really look forward to reading Scalia's dissent if it's a dissent he's writing. His majority opinion would not be much fun to read. I also think it can be confidently predicted that a winning decision in this case will not arouse massive resistance as Brown and Roe did: this decision's time has come.




One little side note about that idea: the Scalia/John Hart Ely theory of substantive rights is that it should ultimately be up to the people to decide what they are. What they would say to those of us who like gay rights is, hey, go convince people that you're right, and win the battle of democracy; don't look to the judiciary for your victory. But consider that nationally, it seems that a majority may be starting to think that gay marriage is a good thing. Were we a unitary state, the logical progression would indeed be for them to go win votes in Congress, or more likely, kick out the Republican House of Representatives in 2012 and then win votes in Congress. But we're not a unitary state. And even if 51% of American adults believe gay marriage is a good, which the vast majority of them probably believe on grounds of justice and fairness and, well, equal protection of the laws, there will be a lot of states where a majority feels the opposite. But under our Constitution, concerns of justice and fairness and especially equal protection of the laws are national interests. That's why we put the phrase "no state shall...deny to any person the equal protection of the laws" into the document. Suppose we want to let the meaning of rights be determined democratically: the right to gay marriage being claimed is a national one, and must therefore be determined in a national manner. If a national majority thinks this is a right, then democratically speaking some organ of the national government ought to inform the states that, under the Equal Protection Clause as democratically interpreted by the People of the United States, they can't deny gay marriage anymore. That could, under Section Five of that Amendment, be Congress, I think. We don't usually let Congress tell the states what laws to pass, but the Fourteenth Amendment clearly gives it some power to do so in the specific areas of Privileges and Immunities, Due Process, and Equal Protection. But normally it would be the judiciary, and in particular the Supreme Court. Indeed, Congress' early and continued tradition of instructing the Court to hear cases on appeal from state courts regarding the constitutionality of state laws might even indicate that Congress has appointed the Court as its deputy for the enforcement of such national rights. If this is a right whose time has come, then since it is a national right it is up to the judiciary to enforce it vigorously against the states.