by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law
Prior to the oral arguments in the 2013 same-sex marriage cases involving the federal Defense of Marriage Act (DOMA) and California’s Proposition 8, Supreme Court commentators committed to marriage equality debated just how fast the Court should act. On this blog, I urged the Court to strike down DOMA in the Windsor case but deny standing to the plaintiffs in the Prop 8 litigation in the hope that the logic of Windsor would lead lower federal courts to strike down state laws banning same-sex marriage. I advocated that approach fearful of the political backlash that would result from the Court creating a national rule imposing same-sex marriage on reluctant states in one bold strike.
Those who wanted the Court to act quickly had two substantial objections. First, the Court’s job is to decide cases “under the law” not to make political predictions and calculations about the effects of those decisions. Second, gays and lesbians should not have been forced to wait one more day before achieving the marriage equality they deserve.
Now that events have unfolded, it is important to address both of those objections (albeit with hindsight) because the arguments for and against the Court acting quickly on same-sex marriage shed important light on the appropriate role of the Supreme Court in our political system and how the Court should force important social change in the future.