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Thursday, June 21, 2018

Judges and lawyers think in terms of analogies. For this week’s Supreme Court arguments involving same-sex marriage, the available analogies include some of the most famous rulings in the Court’s history.

Many people are hoping for what they would see as a heroic decision, requiring states to recognize same-sex marriages. In their view, the Court has an opportunity to issue this generation’s Brown v. Board of Education.

In the 1954 Brown ruling, a unanimous Court struck down school segregation, famously declaring that separate is inherently unequal. A lot of people think exactly the same should be said about separate legal status for same-sex couples.

Brown was exceptionally controversial in its time, but it has been vindicated by history. Indeed, it commands near-complete agreement. No justice is likely to want to participate in another Plessy v. Ferguson, the 1896 case upholding racial segregation that Brown overruled.

Other people insist that the Court should allow state and federal governments to define marriage as they like. In their view, the best analogy is Roe v. Wade. Many people (including Associate Justice Ruth Bader Ginsburg) believe that with its broad pro-choice ruling in Roe, the Court badly overreached.

To agree with Roe’s critics, it isn’t necessary to think that human life begins at conception or that abortion is a morally unacceptable act. The central objection is that the abortion right lacks clear Constitutional foundations — and that in its first encounter with the abortion question, the Court wrongly pre-empted democratic processes and imposed a national solution of its own.

To these critics, the Court engaged in an act of hubris, aggravating political polarization in a way that has had enduring and harmful consequences for American democracy. If the Court essentially requires states to recognize same-sex marriage, will it be creating this generation’s Roe?

If so, the right path isn’t one of heroism but of restraint, and the closest analogy is the Court’s 1937 decision in West Coast Hotel Co. v. Parrish. In that case, the Court rejected the view that the Constitution creates a broad right to freedom of contract, which had raised serious doubts about minimum-wage and maximum-hour legislation.

The Court made it clear that the federal government and the states have a great deal of authority to set economic policy, free from Constitutional limitations. With respect to same-sex marriage, some people think the Court should show a similar degree of Constitutional humility, insisting that democratic arenas, and not federal courts, are the proper location for the resolution of current disputes.