Friday’s U.S. Supreme Court decision legalizing same-sex marriage in all 50 states was great news for some Americans, as you probably know, and a disappointment to others. It clearly was among the most important civil rights decisions the court has made in years.
Before we let the justices vanish for the summer, though, let’s think about one of the greatest mysteries of our government: how, and why, the public eventually accepts judicial decisions, including controversial rulings such as the same-sex marriage case.
The case was close, of course, but hardly unique. Here, as in other controversies, nine highly educated men and women looked at the same laws, heard the same arguments, studied the same Constitution — and reached drastically different conclusions.
Five justices found an absolute right to same-sex marriages. Four found the opposite.
This one-vote margin seems vaguely offensive at first. Politicians reach competing conclusions all the time, but we think the courtroom should be different. Judges deal in absolutes. A one-vote margin on same-sex marriage (or abortion or guns or other controversies) violates our sense that laws should not be subject to narrow differences. A behavior is either clearly legal, or it isn’t. Human society is built on that idea.
Yet judges reach split decisions all the time. That’s partly because lawmakers sometimes abuse the language, forcing someone to figure out what a law or regulation actually says. Different people can read the same words and find different meanings.
Mostly, though, judges make close calls because they are squeezing very specific laws into very broad concepts. What does equality mean? When is punishment cruel or unusual? What is free speech or freedom of religion?
These are hard things to figure out. The Kansas Constitution says “the Legislature shall make suitable provision for finance of the educational interests of the state.” Politicians have spent 25 years arguing over what “suitable” really means.
You define it one way, your neighbor another. The governor thinks it’s this. His opponents believe it’s that.
Someone has to untie the knot. Sure, there’s whining about unelected judges overturning the voice of the people. Recently, Gov. Sam Brownback once again complained about “activist judges” overturning abortion laws and other state statutes.
But voters rarely speak with one voice. They eventually accept judicial decisions because they know the alternative is chaos.