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Ruth Marcus: The politics of Roe and gay marriage

BY RUTH MARCUS Published: April 6, 2013

Consider the examples of North Dakota and Arkansas.

If you think the problem with Roe v. Wade was that the Supreme Court short-circuited the evolving democratic process in the states, look at what the democratic process has wrought.

Arkansas last month enacted a law that bans abortion after 12 weeks. North Dakota went even further, banning abortion after six weeks.

These blatantly unconstitutional statutes aren't the product of a 40-year-old Supreme Court ruling. They are the result of a sincere and intense belief — one I do not share — that abortion is the taking of a human life. They do not demonstrate the folly of the justices' intervention in Roe. They demonstrate its necessity.

The argument over Roe and the alleged backlash it engendered is important because of its obvious echoes in the same-sex marriage cases. Indeed, Charles Cooper, the lawyer defending California's ban on gay marriage, made the democratic process pitch. “The question before this court,” he said, “is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states.”

There are two versions of this argument. The first — Democratic Pro-cess Lite — is that the court shouldn't act now but rather give the country more time to adjust to the notion of marriage equality before stepping in. The second — Democratic Pro-cess Above All — would have the judicial branch eternally defer to supposed legislative wisdom.

Given the velocity of change, in both public opinion and the legislative landscape, I can see the merits of allowing same-sex marriage to win approval in more states before the court intervenes. We're not talking about a dozen years this time.

More to the point, whether or not the country is ready for a constitutional right to same-sex marriage, the justices don't seem prepared to take that plunge. “If the issue is … letting the society have more time to figure out its direction, why is taking a case now the answer?” Justice Sonia Sotomayor asked Cooper. “We let issues perk.”

The percolation theory is, I think, also what underlies Justice Ruth Bader Ginsburg's much-remarked-on critique of Roe as counterproductively sweeping and precipitous. “It's not that the judgment was wrong, but it moved too far, too fast,” the justice said at Columbia Law School last year.

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