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Same-Sex Marriage: First the Supreme Court Has to Decide What to Decide

03/28/2013 09:44 pm ET | Updated May 28, 2013

The Supreme Court has two extremely important cases before it on same-sex marriage, and I don't have a clue what it's going to do. Despite what a horde of commentators might have you believe, they don't know either. However it all comes out, we can be pretty sure that the Court is going to make some people who feel strongly about this issue awfully unhappy. And that's why the nine Justices, as they just now begin their deliberations in earnest, should start with the most basic question: What do they absolutely need to decide in order to resolve the disputes before them -- and what can they leave for future courts to resolve in future disputes?

This is the one we'd all been waiting for. People who've watched the Supreme Court for years couldn't remember when we'd last had a Supreme Court argument (much less two) that drew this much attention. (Well, OK, there was the Obamacare case just last year, but that came down to the Commerce Clause and the taxing power -- pretty dry stuff.). Here we were watching some of the best lawyers in the country arguing about whether the Constitution protects one of the most basic of human rights -- the right to marry -- at a time when people across the country are changing what they have to say about the sexual orientation of their fellow citizens. It doesn't get much better than this.

Then the chaotic roar of the cable news coliseum met the formal, hushed tones of oral argument at our highest court, and the media found it all a bit anti-climactic and perplexing. Instead of a politically-charged courtroom scene like we see in the movies, we heard talk about arcane legal doctrines such as whether the plaintiffs had "standing" to bring the case in the first place, whether the dispute was "ripe" for resolution, and even whether the Court should "DIG" the case (Supreme Court parlance for "dismiss as improvidently granted," as the New York Times helpfully explained).

I spent a year clerking at the Court in the late '70s, and watched with amusement as the media -- often wrong but never in doubt -- speculated about how various Justices would vote in high profile cases. The truth is that the Justices themselves often didn't know how the Court would come out until late in the process (and well after oral argument). Even after opinions were written and circulated people would change their votes -- sometimes changing the result.

We may not know how the Court will rule, but we do know one thing: Bolder isn't necessarily better when it comes to big constitutional cases. And this isn't, as some commentators claim, because the Justices are simply following the polls. One of the silliest things I've heard time and again (from both sides) is that the Court should rule one way or another because it's what the people want.

Those against allowing gays to marry argue that the Court has no business overruling the elected representatives in states that have enacted bans on gay marriage. But the whole point of protecting individual liberties in the Constitution is to override the majority when it seeks to impose its will on a minority. If we could always trust the political branches of federal and state government to do the right thing, then we wouldn't need the Bill of Rights.

On the other side, I can't imagine why those supporting gay marriage should tie their claims to the fact that a majority of Americans stand with them. Would they have any less of a right to marry if the polls hadn't shifted? Would they lose that right if the polls shifted back the other way?

How people want the Court to rule shouldn't affect what it decides, but it should affect how much it decides, given how strongly people feel on both sides of the issue. Sadly, the Court hasn't always taken this approach in wading into controversial areas, and it's paid a price in loss of prestige and trust.

This is the thrust of Justice Ruth Bader Ginsburg's recent criticism of the Court's opinion in Roe v. Wade -- not that it was wrongly decided, but that it prematurely went well beyond the specific question and parties before it and laid out a sort of legislative ruling dealing with all sorts of other possible cases that might come up in the future.

And in Bush v. Gore the Court reached out to take a controversial, political case that it didn't even need to decide. The Constitution specifically says that it's for the Congress -- not the courts -- to resolve problems that arise in presidential elections. What's more, Congress accepted this constitutional responsibility by enacting legislation laying out how it would act in case of disputes. There was no real need for the Supreme Court to get involved in the 2000 election at all.

The nine Justices on the Supreme Court were appointed by the president, confirmed by the Senate, and took an oath to interpret and enforce the Constitution, whether or not it was the popular thing to do. But exactly because we all expect them to disregard the will of the people when it comes to constitutional rights, we also want them to avoid any battles that they don't need to fight -- or at least fight right now. That's why we have those technical-sounding legal doctrines such as standing and ripeness and limiting the Court's ruling to the specific "case and controversy" before it. It's to protect the Court from as much political backlash as possible, to protect it from charges that it is injecting itself into the political process unnecessarily.

If I were an elected representative in any of the states, I would vote for eliminating all bars on same-sex marriage immediately. But I'm not. More important, neither is any of the nine sitting Justices. They have a very different role. All of us, whatever we think about the issues at stake, need them to do their best not to think and act like legislators. We need them to be judges, with all the power and the circumspection that entails.

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