RICH LOWRY: Jurisprudence by the polls
During two days of debate over gay marriage, the Supreme Court considered technical matters of standing, the nature of marriage and constitutional rights, the social science of gay parenting and much else.
The response of top liberal commentators was, Please, don’t bore us with the details. Just get on with it.
What matters is that the cause of gay marriage is righteous — and, oh yeah, gaining in the polls. For the left, the nine justices are bit actors in a real-life episode of “The West Wing,” where truth, justice and progressivism always prevail. The Constitution is an incidental, a prop.
Maureen Dowd, as usual, perfectly reflected the liberal id.
“Their questions,” she wrote scornfully of the justices, “reflected a unanimous craven impulse: How do we get out of this?” “Getting out of it” is another way to put “leaving the question to the elected branches of government.”
Dowd complained that the justices acted like “fuddy-duddies.” Yes, if only our robed masters were cooler. Surely, if they had Anna Wintour in for a working lunch at the court’s chambers, all this unpleasantness could be worked out quickly. Dowd scorned the court proceedings for their lack of emotion. How bitterly disappointing it must be to her that even Sonia Sotomayor, selected by the president in part for her “empathy,” asked questions relating to the law.
In his dispatch, Washington Post columnist Dana Milbank struck a similar tone. He wrote, disapprovingly, “The question is whether the court forces gay-marriage activists to win the right state-by-state.” If that is really the question, why should it even be a question? Since when is it an imposition to advance your cause democratically, especially when you are absolutely certain you are going to win?
Supporters of gay marriage always cite the shifting polls, as if they are relevant to a deliberation over whether gay marriage is mandated by the Constitution. The Republican supporters of gay marriage are no better than the liberals. On MSNBC’s “Morning Joe,” former McCain campaign manager Steve Schmidt, a signatory on a Republican pro-gay marriage brief, confidently predicted that a gay-marriage referendum would pass in California in a presidential election year. Can’t we wait to have the court impose gay marriage until we’re certain a referendum would pass in an off-year election, too?
His former McCain campaign colleague and fellow signatory Nicolle Wallace appeared on “Fox News Sunday.” “More than 60 percent of all Americans, everyone, supports marriage equality,” she said. Wallace was apparently referring to an ABC News/Washington Post poll that showed 58 percent support for gay marriage, which technically is not more, but less than 60 percent.
This happens to be the best result in any of the recent polls for gay marriage. Her point would have been considerably attenuated if she had said, “The most recent Pew poll has 49-44 percent favor gay marriage and the Fox poll 49-46 percent support, slim pluralities that mean ... the court ... must ... act ... now.”
The most telling moment in the argument over Proposition 8 prohibiting the official recognition of gay marriage in California came when Justice Antonin Scalia asked pro-gay-marriage lawyer Ted Olson when it became unconstitutional not to recognize gay marriage. Olson couldn’t answer without appearing ridiculous, either by saying our marriage laws have been unconstitutional since the passage of the 14th Amendment in 1868 or by picking some arbitrary contemporary date.
Olson responded that it became unconstitutional not to officially recognize gay marriages as part of “an evolutionary cycle.” As a matter of constitutional law, this answer is completely inadequate. Constitutional rights don’t evolve with public opinion. As a reply to the political question of when gay marriage began to get traction, it is apt. In this context, you can indeed just look at the polls.
But they have nothing to do with the Supreme Court and everything to do with the political process, even if its supporters would prefer not to be bothered.