THE BLOG
09/30/2013 06:07 pm ET Updated Nov 30, 2013

First Monday in October

"First Monday in October" is the catch phrase associated by many people with the movie starring Walter Matthau and Jill Clayburgh. In actuality, though, the phrase carries far greater significance -- it's the official name for the beginning of the U.S. Supreme Court's new term each year. For lawyers, this start of a new season is filled with excitement and anticipation as the Court hears oral arguments, delivers opinions and decides whether to grant certiorari on some of the most important and pressing legal issues in the nation. As a young law student in Washington, D.C. many years ago, I often gazed up at the Court's marbled columns with great reference whenever I passed by. This October, however, I'm dismayed, still focused on the high court's regrettable ending of its last term in June when the Court elected to punt on the constitutionality of same-sex marriage.

In the Defense of Marriage Act case, the high court struck down a portion of the law that forbade the federal government from recognizing same-sex marriages for purposes of federal benefits in states where such unions were legal. In Hollingsworth v. Perry, the Court rejected the appeal on jurisdictional grounds, the practical effect of which was to leave in place the California District Court's finding that Proposition 8, the ballot initiative that prohibited same-sex marriage, violated the due process and equal protection clauses of the Fourteenth Amendment.

Both opponents and proponents of same-sex marriage hailed the Supreme Court's companion decisions as partial victories. My first reaction? Companion failures, an opinion borne out by the continuing rash of nationwide litigation.

Today, marriage has never been in greater peril. And the Supreme Court's decision to punt has lingering implications that will only make things worse for all Americans for years to come.

More than 40 years ago, state lawmakers across the country adopted no-fault divorce, revolutionizing the way we split in America. And split we have. Divorce rates remain stuck at twice their pre no-fault divorce level, while marriage rates have descended to an all-time low. Family fragmentation has given rise to a banquet of new and untested living arrangements, and cohabitation and unwed childbearing are at an all-time high. Family court litigation, too, is as contentious and costly as ever. At a time when our nation desperately needed guidance about marriage, the Supreme Court left Americans in the lurch.

And it ensured that the same-sex marriage debate will continue to preoccupy the national stage - and our courts -- for years. Time, money and attention will remain diverted from addressing the overriding and more important issue -- making marriage work in America.

Instead of putting Americans on the road to social progress, the Supreme Court put the bar association to work. Forum shopping and more full, faith and credit lawsuits flooding courthouses as same-sex couples travel from state-to-state, their unions recognized in one and banned in another. Constitutional disputes with issues nearly identical to the Proposition 8 challenge (and a DOMA section 2 appeal) rising up through the states to eventually rest at the Supreme Court's door again. More ballot initiatives and efforts to ramp up pending lawsuits. These were certainties from the moment the Supreme Court ruled, and have already begun. The biggest celebrations in town are at the law firms.

In the meantime, Justice Kennedy's slapping of all opponents of same-sex marriage with the brush of bigotry will only further fan the flames. How unfortunate.

Some defenders claim the Supreme Court's decision not to decide will buy time for continued evolution of public opinion in favor of same-sex marriage. Nonsense. That's not the province of the judiciary. Punting is expected in football and politics. Supreme Court justices, on the other hand, are tasked with making the brave - and often difficult - decisions, of leading, not following. Fear of looking bad is simply repugnant to the purpose of lifetime appointment and unworthy of the high office. The need for justices to remain free of partisan politics and popular whim is inherent in our system of checks and balances. Otherwise, it's a bit like saying that, at the time, the Court made the right call in Plessy v. Ferguson (the landmark "separate but equal" decision upholding racial segregation in public facilities) because Americans just weren't ready yet for desegregation.

Whether America is ready for same-sex marriage or not is not the issue. It's the Court's obligation to give us guidance on what the law is whether we like it or not. And circumstances need not reach a boiling point before it's obligated to do so. Instead of punting in 1954, Chief Justice Earl Warren recognized that, even then, many in the nation would have difficulty accepting Brown v. Board of Education, the Court's repudiation of Plessy. Consensus building called for a plan of careful implementation, not avoidance. So he, then the Court, then the nation, got to work doing just that.

To many, the same-sex marriage debate may seem still in its formative years. Not so. Like no-fault divorce, the controversy began over 40 years ago when Minnesota first denied a marriage license to same-sex couples in 1971. Two years later Maryland passed the first statute banning same-sex unions. By 1994, nearly every state had followed Maryland's lead. In the years that followed, a handful of states began to recognize civil unions while others, including Maryland, overturned their statutory injunctions against same-sex marriage. These events eventually led all the way up the Supreme Court. By contrast, divorce reform is nearly at a standstill. And many heterosexuals are primarily wrapped up in the same-sex marriage debate while their own unions crumble.

We are very confused about marriage in America. We need guidance and some semblance of finality and the Supreme Court could have given it. It chose not to.

Granted, adherence to procedural formalities is crucial to maintenance of the Court's integrity. But as Justice Kennedy pointed out in his Hollingsworth v. Perry dissent, the Court's reliance on Article III of the Constitution to deny petitioners standing left them without any remedy to secure appellate review. Ironically, Article III also provides that the Court's power extends to all cases in both law "and equity." And the most basic canon of equity? That wrongs must have remedies. The remedy in Perry was simply for the Court to hear the constitutional debate and decide it.

Sadly, there would seem to be no middle ground in the same-sex marriage debate. And maybe there truly isn't. By leaving the ultimate question of constitutionality mired in uncertainty, however, the Supreme Court may have only hardened these lines of contention, making it harder for those who take the high road - on both sides of the contest - to be heard.

But Americans need not accept the bait. The Supreme Court's negligence of its duties does not absolve us of ours. With or without the Supreme Court's blessing, Americans on both sides of the same-sex marriage debate - even while they deliberate -- can begin the process of healing now by taking the same high road of tolerance parents demand of their children.

This will also allow our nation to broaden its national agenda and turn a portion of its time, legal attention and finite resources to the serious issues facing all unions. And that means addressing not only the way in which individuals come together, but also the way in which they part. Only then can we make sure that more unions remain intact for the good of all families and that, when the time comes for the Supreme Court to finally decide, there will be a healthy institution called marriage to pass on.

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