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.

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.

The painful but sometimes unspoken truth is that seminal Supreme Court rulings sometimes reflect the era in which they were decided.  In 2012, it is ridiculous to believe that the government could ban inter-racial marriage.  But that was the law in much of the country for most of its history.  In fact, it was a serious argument, and there were a number of similar laws on the books, when the Court declared them unconstitutional in 1967 in Loving v. Virginia.  Society moved over the course of our history, and so did the Court’s understanding of the Constitution.

Here, the argument that the Framers of the Constitution would have recognized constitutional rights related to same-sex marriage is silly.  In fact, the claims of same-sex marriage advocates were hopeless in this Court – both because of its conservativism but also because of social attitudes – as recently as five years ago.

But the arc of history tilts towards equality and justice, and our society is rapidly but unevenly coming to the judgment that same-sex marriage is just and right.  The claims presented by this case would just as inevitably prevail (probably by a wide margin) in the Supreme Court twenty years from now.  By then, it will be broadly (if not uniformly) accepted that discrimination against homosexuals related to marriage is invidious and irrational.  Our attitudes are shifting that fast.

Our country and societies around the world will read the Justices’ decision(s) not principally as a legal document but instead as a statement by a wise body about whether same-sex marriages are morally right or wrong.  The issues are that profound and fraught; they in a sense seem to transcend “law.”  Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.”

But the verdict of history cannot decide the legal questions presented by these cases.  The cases arrive today, in this moment, before our cultural transition has completed.  In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims.  But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future.  They will have to make a judgment now.

Posted in Featured

Recommended Citation: Tom Goldstein, History, SCOTUSblog (Nov. 30, 2012, 7:24 AM), http://www.scotusblog.com/2012/11/history/