by Michael Dorf
Ireland's decisive referendum vote in favor of recognizing same-sex marriage is obviously important, indeed historic, in its own right. But inevitably one finds it hard not to see this through one's own lens. What lessons will and should be drawn here from the Irish experience?
During the oral argument last month in Obergefell v. Hodges, Chief Justice Roberts cited the example of rapid changes in public opinion in Maine and said: "People feel very differently about something if they have a chance to vote on it than if it's imposed on them by . . . the courts." He thus suggested that it would ultimately be better for the marriage equality movement itself if the plaintiffs lost in the courts but won through legislation and ballot initiatives in the states.
In one sense, the Chief was right. As a matter of basic psychology, having a say matters to people. Tom Tyler's work confirms this general proposition specifically with respect to law.
Yet the Chief's suggestion ultimately missed the mark because the possibility of extra-judicial relief is not a reason to deny judicial relief that's otherwise appropriate. Suppose Homeowner sues Neighbor to enjoin a nuisance. It might well be better for eveyone over the long run if, instead of litigating, Homeowner and Neighbor went to mediation and arrived at a mutually satisfactory resolution. However, if Homeowner and Neighbor have not done so, then the judge's obligation is to resolve the dispute according to law. If the law entitles Homeowner to the injunction, then it is not the place of the court to deny the injunction because it would be better for both Homeowner and Neighbor for them to work things out in a more participatory fashion. Likewise here, if, all things considered, the Fourteenth Amendment is best read to recognize a right to same-sex marriage, then it is not the place of the SCOTUS to deny such a right on the ground that it would be better for the plaintiffs if they won the right through the democratic process.
To be sure, court-ordered mediation is generally a possibility, but where courts order mediation, they order parties to participate in mediation. There is no obligation to resolve an issue through mediation. Moreover, the analogy does not hold because of the timing difference. Mediation takes days or at most weeks. Obtaining a right to marry through democratic means in every state in the U.S. would take years, notwithstanding recent dramatic shifts in attitudes.
Even if Congress supported a right to SSM, it lacks the authority to enact a law guaranteeing such a right. Congress would have the power to enact laws enforcing such a right under Section 5 of the Fourteenth Amendment but only if the SCOTUS were first to recognize such a right under Section 1 of the Fourteenth Amendment. Otherwise, rules governing who can marry generally fall within the reserved powers of the states.
Ireland got its right to marry via a national referendum amending the Irish Constitution, but the procedure for amending the U.S. Constitution is more demanding. There is not currently 2/3 support for marriage equality in the House or the Senate. Perhaps when there is such support there will also be majority support in 3/4 of state legislatures, but changes in public opinion do not translate into changes in legislators' preferences in a perfectly linear fashion, and so it would be, at best, years before a national consensus in favor of SSM would make itself felt as an express constitutional right to SSM. For the U.S., at least for the next few years, it is the Supreme Court or nothing.
Given the difference between, on one hand, Articles 46 and 47 of the Irish Constitution, and, on the other hand, Article V of the U.S. Constitution, it would thus be a profound mistake to read the Irish referendum as signalling that it would be fine for the SCOTUS to leave the SSM issue to the political process. Doing so would mean delaying justice--and thus denying justice--for years. Instead, the right lesson to draw from the Irish referendum is that throughout the world of constitutional democracies, marriage equality is increasingly seen as a fundamental right.