The Court of Public Opinion
In the spring of 2012, the color red flooded social media, as citizens of developing countries had taken it upon themselves to avenge the victims of Joseph Kony, the leader of a Ugandan resistance army that displaced approximately two million people, by changing their profile pictures on Facebook.
After a few months of online excitement, celebrity endorsements and protests against the African warlord, the buzz died down, and faces once again appeared on social networking sites.
The movement to bring Kony to justice had failed miserably.
A year later, Kony remains at large, but the color red once again washes over various social media sites. This time, red does not symbolize support for international justice. Instead, as profile picture after profile picture changes to an equal sign on a red background, people proclaim their support for marriage equality in the United States.
When the Supreme Court began to hear oral arguments regarding the Defense of Marriage Act (DOMA) and Proposition 8 on March 26, proponents of marriage equality vocalized their desire for the Supreme Court to rule in favor of LGBT civil rights.
After all, the 14th Amendment states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The 14th Amendment provides clear justification for overturning both the Defense of Marriage Act, a 1996 federal law signed by President Clinton that restricts marriage benefits and recognition to opposite gender unions, and Proposition 8, a statewide ballot proposition which restricts marriage recognition in California.
Although the Supreme Court leans towards ruling DOMA unconstitutional, ruling against Prop. 8 has more blanket legal ramifications. By overturning DOMA, the Supreme Court allows same-sex couples the same benefits bestowed on opposite-gender unions. Ruling on Prop. 8, however, leads to a sweeping judgment by the Court, which would either federally legalize same-sex marriage or allow all 50 states to pursue whatever route seems fitting.
While American society continues to grapple with the morality of same-sex marriage, some assert that such a ruling appears to be untimely.
David Cole, in an op-ed article for the New York Times, argued, “History suggests it would be unwise for the Supreme Court to impose a uniform solution on the nation now.”
Cole anticipates national backlash in response to a Supreme Court ruling in favor of Prop. 8, citing the unrest after Brown v. Board of Education and Roe v. Wade. If the Supreme Court so chooses, it has the legal justification to dismiss the case, because the parties appealing the lower court ruling do not have the legal power to appeal the case at all.
But then the question becomes, should the Supreme Court dismiss the Prop. 8 case and wait for public opinion to shape its decision? According to a November 2012 Gallup poll, 53 percent of Americans support same-sex marriage, and the numbers in favor of marriage equality are on the rise.
In an op-ed for The Nation, Jill Filopovic declares, “Americans would not view dodging the national issue with a narrow ruling — only addressing federal benefits in the DOMA case, deciding petitioners don’t have standing in the Prop 8 case — as a rational Judgment of Solomon; they would see it as a cop-out at best, and even a transgression against the Court’s most fundamental and valuable purpose.”
Filopovic brings up a valid point, because fear of potential backlash does not justify the Supreme Court’s indecision in the Prop. 8 case.
After all, the historic role of the Supreme Court has not been to affirm public opinion, but to interpret the constitution to determine the legality of the laws of the land, whether or not “the timing was right.”
Perhaps the Supreme Court lacks the power to skirt around backlash or to enforce its decision, but that makes its decision no less powerful.
Much like the act of changing a profile picture, issuing a Supreme Court ruling overturning Proposition 8 and allowing same-sex marriage across the nation may not change things overnight, but it shows that we, as a nation, are taking steps in the right direction.
Misha Euceph is a third-year philosophy and literary journalism major. She can be reached at firstname.lastname@example.org.