Editorial Of The Day
From Tom Goldstein at SCOTUSblog:
At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage. These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.Read the full essay.
I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.
The cases present a profound test of the Justices’ judgment. The plaintiffs’ claims are rooted in the fact that these laws rest on an irrational and invidious hatred, enshrined in law. On the other hand, that describes some moral judgments. The Constitution does not forbid every inequality, and the people must correct some injustices (even some grave ones) themselves, legislatively.
The striking feature of these cases – not present in any others I have ever seen – is that that they would have been decided by the Justices’ predecessors one way and would be decided by the Justices’ successors another way.