The Right Coast

April 05, 2004
Under God and Same-Sex Marriages
By Mike Rappaport

My position concerning constitutional adjudication is a bit unusual. My normative position – how I think the Supreme Court should decide cases – is originalist. I think the Justices should adjudicate in accordance with the original meaning of constitutional provisions. My positive theory – how I think the Supreme Court actually decides cases – focuses, by contrast, on the politics and preferences of the Justices. I think that the Court as a whole decides cases, especially concerning politically significant issues, with little reference to the original meaning. Instead, the Justices look to their political beliefs, which are to a significant extent those of elite opinion, and are reluctant to take actions that will cause the public and the political branches to severely attack them.

It is true some of the Justices seem to behave differently than my positive theory suggests. Justice Scalia, for example, may often try to decide cases based on original meaning rather than his political views. And other Justices may be willing to decide cases based on their own political views, even if the public would be outraged. But in general, the majority of the Supreme Court, especially a majority with O’Connor and Kennedy, follows the pattern I suggest.

Based on my positive theory, I can make some pretty clear predictions as to how the Court will decide the pledge case and an important question concerning same-sex marriages. In the pledge case, I predict that, if the Court does reach the question whether the pledge is constitutional (which seems unlikely given the standing problems), the Justices will conclude that the pledge does not violate the Constitution. The Justices’ main motivations: First, a large portion of the public would be outraged by a decision to the contrary and would attack the Supreme Court for its decision. Second, public opinion strongly supports the existing pledge and even much of the elite believes that it would be peculiar for the pledge (which they grew up with) to be struck down, even though they might recognize that the pledge fits uncomfortably under existing Establishment Clause precedents.

Concerning same-sex marriages, the most immediate question seems to be whether the Full Faith and Credit Clause would require a state that does not allow same-sex marriages to recognize same-sex marriages entered into in another state. I predict that the Supreme Court would definitely not require states that do not allow same-sex marriage to recognize such marriages from other states. If the Supreme Court did require that these marriages be recognized, that would, again, lead to vehement attacks on the Court and would be inconsistent with the views of most of the public. While elite opinion might support such a rule, it has also argued for federalism in this area, which would be undermined by a requirement that states recognize other states’ same-sex marriages. Of course, twenty years from now, the public might have different views and then the Court might feel open to reaching a different decision.

Of course, my predictions might be wrong. But I don’t think so.