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January 3, 2005

Rauch's Reasoning

Unless I'm missing something (which isn't a negligible possibility), the question raised by the last paragraph of Jonathan Rauch's WSJ piece on same-sex marriage is whether his reasoning is flawed or his deception is deliberate (emphasis added):

Mercifully, we may now get some time. Republicans' continued control of Supreme Court nominations makes it nearly unimaginable--and it was always unlikely--that the court will overrule the states on gay marriage. The Supreme Court recently sidestepped an opportunity to intervene in Massachusetts' gay marriages, and the election returns will give lower federal courts second thoughts about butting in. The enactment of those 13 state amendments demonstrates that popular sovereignty is alive and well in the states. I am dismayed by the amendments' passage, but I can't complain about the process. Nov. 2 showed that our federalist system is working exactly as it should, and it made the case for federal intervention weaker than ever.

Given what I've previously read from Rauch, I'm inclined to see him as an overly optimistic activist, rather than a manipulative one. Either way, if he's referring to the SCOTUS non-intervention that I believe he is, the Court's sidestepping the opportunity was hardly a neutral action. It had been asked to review whether the Massachusetts Supreme Judicial Court had acted beyond its authority, and its refusal to block the Goodridge ruling effectively answered in the negative.

Posted by Justin Katz at January 3, 2005 9:47 PM
Marriage & Family

Nope: When the Court refuses to grant certiorari, it has no precedential value whatsover.

Posted by: Jon Rowe at January 4, 2005 2:21 PM

Precedential value or not, the decision left supporters of SSM getting their way. A person who believes, as I do, that many members of the judiciary would like to bring about nationwide SSM will hardly see that decision as a disinclination to get involved. Much ostensible neutrality in the modern day — particularly when it comes to courts and their use of precedent — involves a selective "neutrality" when it suits one side.

An important point that the legally minded are particularly apt to miss is that the judiciary has rapidly decreasing credibility with a large segment of the population.

Posted by: Justin Katz at January 4, 2005 2:31 PM

I don't think you can say anything about the Supreme Court's opinions on SSM from there decision not to here arguments. While I too don't believe that decision was a neutral one, I don't think it had anything to do with same-sex marriage; I think it had to do with the rights of states to control their marriage laws. Each and every member of the court could be opposed to gay marriage and still feel that it is not a federal issue and therefore decide not to hear the case. Or they may have felt that it was an issue that should have been brought up in a lower federal court first. Or they didn't think that that particular case didn't merit being heard. But I don't think that you can say anything about how the SC views the role of the courts in defining marriage, just defining what is and is not constitutional.

Posted by: Michael at January 4, 2005 4:36 PM


Perhaps my point has been lost (largely by my own fault). I was essentially saying the same thing --- that it's laughable of Rauch to point to that Supreme Court case for his purposes. My further point is that, if anything, it points in the other direction.

Posted by: Justin Katz at January 4, 2005 5:06 PM

As an attorney, I saw no real message either way in SCOTUS declining cert.
They can always answer the question later – on a similar claim. (If need be)
As pro-marriage (anti-ssm) I see this as good. They are letting the public beat up on this terrible idea through their legislatures.
What to watch for is Mass and the movement of their amendment. (very important)

Posted by: Fitz at January 4, 2005 5:35 PM