The Court of Public Opinion

Did you notice some justices’ skepticism today over the impact of their ruling in Obergefell v. Hodges, the case deciding the fate of same-sex marriage bans? Chief Justice John Roberts voiced his concern over a ruling in the plaintiffs’ favor, saying, “I mean, closing of debate can close minds, and it will have a consequence on how this new institution is accepted.”

Timing v. Prudence

What if the U.S. Supreme Court didn’t wait a century to end Jim Crow? Schools would have been integrated; violators of civil rights would have been brought to justice. The fact that it took roughly 100 years after the Emancipation Proclamation to end Jim Crow is proof that patience on the subject of rights is no virtue.

In hindsight, every moment an American citizen is forced to live under illegal and unjust laws is unconscionable. We certainly could wait for the same-sex marriage debate to drag on for a few more decades, or we can right the wrong immediately.

Does Roberts' comment reveal a crack in our nation’s defense of individual rights? Popularity is not necessary to ensure equality. When the equal right to marry was denied as a result of public referendum in the various states, it was the role of the courts to step in, regardless of public opinion.

Yet public opinion is inextricably tethered to the heart of this issue. And the justices appear cognizant of this reality.

“People feel very differently about something if they have a chance to vote on it, than if it's imposed on them by the courts,” Roberts offered. Is he trying to avoid a situation like the aftermath of Roe v. Wade that galvanized the pro-life movement, leading to a cultural civil war still alive today? Is Roberts more concerned about potential cultural stress than the immediate and just relief of the ignored?

Jury is Out

For the pro-LGBT community, the result of this court battle seems like it should be crystal clear: marriage equality is a 14th Amendment guaranteed right (Equal Protections Clause). While nothing seems to be guaranteed (including guaranteed rights), there is optimism among advocates that the time for LGBT equality has come. The question remains whether the justices agree the timing is right. The jury is still out.

(Also published at the Milwaukee Journal Sentinel - Purple Wisconsin)