A unifying ruling by the U.S. Supreme Court is no longer just all but inevitable. It is a necessity. Even those who routinely decry judicial activism and courts acting like legislators can appreciate the need for a clarifying opinion.
And, no, before anybody mentions it, this is not like Roe v. Wade. In that case, the court abruptly and arbitrarily imposed its will on the nation in an area that was being thoroughly debated in legislatures. Furthermore, justices invented a constitutional justification for abortion on demand by finding a woman’s right to one somewhere in “the right to privacy,” itself a suspect concept.
Gay marriage, on the other hand, has been the subject of legislative and judicial activity for several years in states across the nation, and vigorous and spirited discussions have moved public opinion steadily in one direction. It’s not as if a high court ruling would come as a great shock.
Furthermore, this is exactly the kind of issue the court should address. It touches on two major components of constitutional text — the full faith and credit clause and the 14th Amendment’s guarantee of equal protection under the law. States are required to give full faith and credit by honoring the laws of other states, and legally defined marriages have come under the clause. Does gay marriage count? Is it something covered by the 14th Amendment?
The heart of the matter is the answer to one question: Is marriage a fundamental right? The Constitution never mentions the word, but rulings over the years have certainly leaned that way.