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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, October 17, 2014

Gradualism Has Its Place

Update: I appreciate this nice crisp four page opinion dealing with SSM in Arizona -- once the 9CA ruled, no need to belabor the point.  Cf. A twenty-something ruling from Alaska. Hopefully, other district judges, as needed, follow the lead. Cf. today's a sixteen page Wyoming deal.

Various people sympathetic to same sex marriage are concerned that the USSC didn't grant cert, Prof. Dorf taking a somewhat different tack here though noting in comments that he also thinks the importance of the issue or as I quoted from their guidelines:
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
Another professor merely provided a quote on the "vices of passive virtues," leading to an extended discussion on various issues including racism. The citation of Naim v. Naim -- a much criticized punt by the USSC in the 1950s when it wasn't ready to decide interracial marriage. This led me to add a few words. The below is a somewhat edited version.

I think the "common law" idea of case by case development of constitutional law (Judge Ginsburg supported this during her confirmation hearings, using an example of how her circuit did this to decide 4A questions bit by bit), to "‘get it right’ and ‘keep it tight.’" Bottom line, though at some point the USSC should take the SSM cases, but push comes to shove, one year after Windsor, it is not horrible that they are not.

Gradualism can leave in place in the short term horrible law. But, Brown v. Board et. al. showed turning horrible law around is akin to turning a tanker. Also, though we see racial discrimination as a united whole, it simply was not in the past. For instance, even Justice Harlan, the dissenter in Plessy, felt public school segregation different:
"Of course, what I have said has no reference to regulations prescribed for public schools, established at the pleasure of the state and maintained at the public expense."
BEREA COLLEGE v. COM. OF KENTUCKY (racial integration in a private college not protected).  And, as Justice Souter noted, this is both not surprising or even shocking on a basic level. The law develops over time as society does. Justice Jackson in an unpublished concurrence to Brown noted that over time education became so essential to citizenship etc. that the old path was no longer sound. It was no longer mere "social" in nature. And, even there, as seen in Loving v. Virgina, "social" discrimination was no longer seen as acceptable. The original understanding on the whole, with limited dissent, was that interracial marriage was not covered. Harlan went along with the sentiment that "evenly applied" race based laws were acceptable there.  As were certain race based programs.

There is also the prudential concerns about the strong public reaction to overturning such bans (miscegenation perhaps first came to the fore as a major public bugaboo during the election of 1864, used against Republicans, most of whom joined with Lincoln in denying they were for the right to that sort of thing).  Constitutional principle might eventually lead to broad decisions but it is not inappropriate for the Supreme Court, especially with its discretionary doctrine, to not decide all things at once.

Or, one year after they decided a more narrow ruling.

See also: on the "okay to wait" side though it overargues the Roe point. Still, though question just how much it would have changed things, there is a strong argument to be made that they should have went somewhat slower.  As to the second point, I say again -- if the USSC took a case, probably the matter would be on hold for eight months. Wonder how newly married SSM couples in various states will feel about that. 

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