Yet, as difficult as the likely outcome of the case will be for those of us who support gay marriage, the court's rationale will almost certainly strengthen a fundamental tenet of the progressive movement: the right of ordinary citizens to maintain authority over their state constitutions.
When Theodore Roosevelt, the Progressive candidate for president in 1912, proposed the recall of state court decisions to enable "the people themselves" to decide constitutional issues, he was responding to our democracy's inherent tension between judicial authority and democratic legitimacy. And when Larry Kramer, the preeminent progressive scholar of "popular constitutionalism," criticized William Rehnquist's Supreme Court, he noted, "The Supreme Court is not the highest authority in the land on constitutional law. We are."(emphasis added)
Unfortunately for supporters of gay marriage, the most pronounced demonstration of popular constitutionalism in recent years has been the adverse response of voters to judicial decisions advancing the constitutional claims of same-sex couples. The idea that judicial authority is not ultimate constitutional authority can be particularly unsettling when citizens choose to amend their state constitutions to limit rather than expand rights.
In fact, the current status of the same-sex marriage issue in our society is largely the product of a critical distinction between state constitutional law and federal constitutional law. Simply put, state constitutional interpretation is not reserved exclusively for judges.
My first response: huh? This is the exact argument that has been propagated by conservatives throughout the same-sex marriage battle as a response to activist judicial decisions such as the original California decision. Let the people decide!
The delicious irony comes from a 1999 case presided over by then Vermont Supreme Court Chief Justice Jeff Amestoy called Baker v. Vermont. Amestoy also wrote the majority opinion. The unanimous decision found that existing prohibitions on same sex marriages were a violation of the Vermont Constitution. The decision forced the Vermont Legislature to either allow same-sex marriage or to come up with an equitable alternative. So much for "the right of ordinary citizens to maintain authority over their state constitutions."
Since the Civil Rights movement, the courts have been the primary focus of "progressive" advocates. One has to look no further than their crown jewel, Roe v. Wade, to see this.
What this Op-Ed shows is that "progressives" want it all ways. They want the Supreme Court to make up rights and advance their "progressive" agenda. In lieu of that, they want the State courts to do the same. As a last resort, they hope the people will buy into their "progressive" agenda to amend State Constitutions. I guess this Op-Ed takes it even one step farther, in that absent any of the above, they will just claim victory for some sort of "progressive" ideal. Hopefully I am not alone in wishing that, in the future, they are forced to merely claim victory more often than not.