The Divisive Supreme Court

Obergefell v Hodges, the Supreme Court’s decision invalidating state same-sex marriage bans, was widely perceived as the work of a partisan elite imposing its policy preferences on the American people. Two aspects of the decision support this conclusion. First, the case was decided by the narrowest possible margin, with Justices splitting along ideological lines. Second, the majority opinion is not well reasoned, suggesting that the Justices’ decision was weakly supported by law. This perception of Obergefell as an elitist, partisan power grab to resolve a controversial social issue reflects broader concerns about intensifying divisions in our society, and their harmful effects on our political discourse. I agree with these criticisms, but I argue that the fault lies, not in the recognition of a federal constitutional right to same-sex marriage, but in the Supreme Court’s intervention. Before the Supreme Court took over, the federal right to same-sex marriage was protected by a growing patchwork of cases decided by a politically diverse group of federal judges who were deeply connected to the states whose laws they were reviewing and who applied constitutional doctrine with considerable care. Taken together, the nineteen federal district court decisions that struck down same-sex marriage bans on federal constitutional grounds in the two years leading up to the Obergefell ruling manifested the ongoing emergence of a national consensus in favor not only of same-sex marriage but of a federal constitutional right protecting those marriages. But when the Supreme Court stepped in, it transformed this emerging, bipartisan, locally grounded legal consensus into a legally questionable political act of a coastal elite who barely outvoted their colleagues who passionately disagreed