Does the Supreme Court “Ratify Society’s Progress”

February 24th, 2014

Last week, Adam Liptak wrote a piece in the Times discussing the rapid pace at which courts have ruled in favor of same-sex marriage. One quotation at the end, from Justice Kagan, stuck with me:

“She has been critical of certain cases, most notably Roe v. Wade, for having ruled too expansively and too quickly,” Justice Kagan said of Justice Ginsburg, who listened attentively. “But she has also recognized that when the time is right courts can play an important role in ratifying society’s progress.”

Does the Supreme Court “ratify society’s progress”? I would not be surprised to hear such a line from a Professor, but to hear it from a Justice is a bit more striking.

And what is the measure of society’s progress in this case? In part, states legalizing same-sex marriage. In other part, district court judges striking down laws banning same-sex marriage? There is certainly a feedback loop between the two elements. I’m sure some may disagree with this status of progress, but to do so, in society, could be precarious.

Andy Koppelman stated it more bluntly:

Rapid changes in public opinion are also playing a part, said Andrew M. Koppelman, a law professor at Northwestern. “It is becoming increasingly clear to judges that if they rule against same-sex marriage their grandchildren will regard them as bigots,” he said.

The message is loud and clear for any judge that would uphold a law banning same-sex marriage.