Paul Greenberg

"The lines of Separation drawn by the Constitution between the three Departments of Government, their being in certain Respects checks on each other, and our being judges of a court in the last Resort, are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.

"We exceedingly regret every Event that may cause Embarrassment to your administration; but we derive Consolation from the Reflection, that your judgment will discern what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle to the Preservation of the Rights, Peace, and Dignity of the united States."

Can you imagine today's intercourse between the different branches of our federal government, specifically Congress and the White House, being conducted on so high and courteous a plane? It's not easy, which says something about how far the Republic has come (down) since the Founding Fathers, who might be summed up as truly the country's greatest generation. . .

All of which now brings us to that same Supreme Court's deliberations just last week over a question that might have been inconceivable to the authors of the Federalist Papers, as imaginative and wide-ranging and far-seeing as they were:

Should the Supreme Court of the United States, with one sweeping decision, wipe away all limits, federal and state, to marriage between two consenting homosexuals? If those bewigged luminaries of a statelier time had been told what the court was considering in the Year of Our Lord 2013, would they have believed it? Or just considered it a vulgar joke?

Yet that is the question now before the high court, which has been invited to overrule a California law barring such marriages preparatory to wiping out any distinction in federal law, too, between traditional marriage and the rapidly growing trend to recognize homosexual unions on the same basis.

To do so now would invite the same kind of Forty Years War in the political arena that the court unleashed in 1973 when it declared abortion the law of the land. Apparently under the delusion that it could overrule any and all qualms, moral and legal, state or federal, about the killing of the unborn. Result: The court opened a great divide in the law and in public opinion that has only grown greater since. . .

That is what comes of declining to leave so volatile a question to the courts and legislatures in every state -- those laboratories of democracy, Mr. Justice Brandeis called them. Now there are 50 of those states, and they are still ideally suited to debate and resolve so fundamental an issue. . .

Some of the worst and most divisive decisions ever handed down by the Supreme Court of the United States were inspired by just this same sure confidence that the court's judgment was superior to the conscience of the American people in their various states assembled. Consider the disastrous Dred Scott decision in 1857 that led to the Civil War/War Between the States. Or Roe v. Wade, which continues to agitate the American conscience. . .

Rather than wait for the law in its deliberate speed to resolve such issues in the goodness of time, the high court is now asked to short-circuit the case-by-case accumulation of precedent known as the common law.

It is good that the court spent hours, even days, debating not so much the essence of the great issue now before it but procedural matters, including who has standing to bring so momentous a question before it.

If the learned justices will continue to exercise judicial restraint, holding their judgment in abeyance till the proper time arrives and the proper circumstances arise, both the court and the country might awaken some day to discover that the best of judges has settled this issue amicably, respectfully, and, in regard to the institution of marriage, even reverentially. For the best of judges is the passage of time. . .

All that's needed now is a little judicial restraint. And a willingness to allow so intimate and basic a question to be settled where it has long been lodged -- in the laws governing personal relations (like marriage, divorce and inheritance) in the laws of the several states. And in the federal laws that govern a multitude of programs administered out of Washington, from Social Security to military pensions.

Once time does its work and the fruit of patience is reaped (it is called peace), it is easy to imagine the shade of John Jay smiling benignly upon our generation, thankful that his descendants can still exercise his propriety and courtesy -- and his restraint, respect and even reverence before the law.


Paul Greenberg

Pulitzer Prize-winning Paul Greenberg, one of the most respected and honored commentators in America, is the editorial page editor of the Arkansas Democrat-Gazette.


 


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