Why Marriage Might Win in the Supreme Court

It is a foregone conclusion to many that the Supreme Court will find the man-woman definition of marriage unconstitutional. I confess, I’ve often felt that way. However, for the first time in a while, I thought of something that gave me a true sense of optimism.

Like many, I believe that Justice Anthony Kennedy may be the vote that decides a 5-4 outcome, one way or the other. What gave me hope was actually a pro-abortion opinion of which he was a part back in 1992, Planned Parenthood v. Casey.

One of the reasons the Court gave in Casey for not overruling the 19-year-old legal tradition established by Roe v. Wade was that doing so “would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.”

This, he said, was true because the “Court’s power lies … in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.”

And according to the Court, the kind of “perception” leading to the “acceptance” that it needs is based on its ability “to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures … .”

In other words, when the Court can’t ground its decision in precedents that have developed over time and that been accepted by the people, it begins to look like just another political branch of government, undermining what we need to believe as a nation—that the Court is the one entity that rises above politics to operate on the basis of the rule of law.

But it is here that a Justice like Kennedy, who cares about the Court’s legitimacy in the eyes of the general public, has a problem. The precedent of the Court for over 200 years has been based on an understanding that marriage is the relationship between a man and a woman.

And that length of time is important, too. Justice Kenney agreed in Casey that a decision overruling prior precedent “is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong.” And as he noted, “There is a limit to the amount of error that can plausibly be imputed to prior courts.”

In my opinion, asking Americans to believe that the Court has been in error for over 200 years in its understanding that marriage is the relationship between a man and a woman reaches the “limit” of the “amount of error” that is plausible.

Justice Kennedy apparently thought in Casey that after only 19 years it would be implausible for Americans to believe that abortion was no longer a constitutional right. If that’s true, then surely he will think it implausible for Americans to believe that it’s now somehow constitutionally impermissible to define marriage as a man and a woman after we’ve done so for the more than 200 years since our Constitution was ratified.

And implausibility is not something Justice Kennedy can afford to risk, because the legitimacy of the Court is already at an all-time low. An Associated Press opinion poll released last week showed that only 23 percent of Americans have a great deal of “confidence” in the Supreme Court.

Justice Kennedy, to paraphrase the language you signed onto in Casey, there is a limit to the level below which confidence in your Court can go before you, your colleagues, and your rulings will be no longer “plausible” and your edits viewed as illegitimate. And you are at your limit.

Ironically, the position Justice Kennedy took in Casey was not the one people expected from the Reagan appointee. Pro-lifers were as sure then that he was the vote they needed to reverse Roe v. Wade as same-sex “marriage” advocates are sure today that they will get his vote to turn marriage on its head. The pro-lifers were wrong about him. Perhaps this summer, history will repeat itself.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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