Same-sex marriage, ACA: Two occasions for Supreme Court restraint

Sometime in the next few weeks, the U.S. Supreme Court will hand down two sensational rulings, kindling firestorms of controversy no matter what it decides.

The court's upcoming rulings on same-sex marriage and Obamacare could significantly reshape key social policies. But the year's most closely watched cases may prove even more important in shaping Americans' attitudes toward the court itself — inspiring confidence or contempt toward the legitimacy of the judicial function.

It may be wishful thinking, but the justices would best serve their institution and the nation if they could resist both of the alluring temptations before them and deliver a double-dose of restraint — declining both the invitation to legalize same-sex marriage nationwide, on the one hand, and the invitation to torpedo Obamacare, on the other.

Each of these judicial power plays is being pushed by one of America's ardent ideological tribes. Social progressives and economic conservatives have each so far been unable to get exactly what they want through the political process — at least, as quickly as they want it — in these heartfelt and incendiary disputes.

But the court has solid grounds to refuse to trump the democratic system for either of these frustrated bands of true believers.

Rest assured that the proper, limited role of courts in a republic will be eloquently described by conservatives in the coming weeks — if the court rules against traditionalists on same-sex marriage.

Meanwhile, should Obamacare's defenders suffer defeat at the court, they will doubtless deliver a similarly illuminating tutorial on the importance of judicial modesty.

And the losers in either of those circumstances will be right (if perhaps hypocritical) when they say that the correct role for a democratic court is not to decide what policy should be, but to give effect to the will of the people, as expressed in laws duly enacted through the political system.

The important exception is in situations where the people, through supermajorities, have guaranteed in their constitutions certain individual rights by decreeing that certain kinds of laws may not be made by ordinary majorities.

Gay-marriage advocates, of course, argue that just that kind of exception-making injustice lurks in state laws limiting marriage to opposite-sex couples. Such restrictions deny gay and lesbian couples the constitutionally guaranteed "equal protection of the laws," it's said.

But it's a stretch to discover this evolving social innovation in constitutional bedrock.

There are basically two schools of constitutional interpretation. One says constitutional provisions mean what they meant to people at the time they were adopted; the other says their meaning changes in step with society's changing attitudes.

Nobody supposes that "equal protection" meant recognizing gay marriage to Americans in the 19th century, when the 14th Amendment was adopted. And while attitudes about gay marriage clearly are changing, nothing prevents states from expressing new attitudes in their laws through ordinary political means.

In fact, a number of states, including Minnesota, have done just that though legislation or referendums. But most have not; voters in more states have directly enacted same-sex marriage bans.

In short, it's judges' attitudes that have most completely and emphatically changed. Same-sex marriage has become legal in most of the country largely through court decree.

To now finish the job, the high court will have to decide that there is no "rational basis" whatsoever in the reluctance of some states and some Americans to jettison gender as a factor in the definition of marriage.

If the justices do that, it probably won't change the ultimate evolution of marriage customs in our society. But it will confirm millions of Americans in believing that the court is an instrument of ideology more than of law.

The same unhealthy message will undermine the court's credibility with an entirely different set of Americans if the court's conservatives succumb to temptation in the Obamacare case that will similarly electrify debate later this month.

In that case the court is being urged to rule that the health insurance subsidies provided under federal health care reform cannot be offered in the 30-plus states that have decided not to create their own health insurance "exchanges," but rather to rely on the federal version.

The language of the law only authorizes subsidies in connection with exchanges "established by the state."

But surely there can be no meaningful sense in which the Congress that summoned the political will to enact Obamacare intended to deny the majority of Americans that program's central benefit — subsidies that, combined with a "mandate," would broaden health insurance coverage.

Pretty clearly, they made a mistake in writing the statute — perhaps a political mistake in underestimating resistance in state capitols to setting up local exchanges.

But the Obama administration's fixing of that flaw by widening access to the subsidies beyond the literal language seems a more reasonable effort to give effect to what was meant to be enacted than a rigid reading that would destabilize the whole reform structure.

Those determined to repeal or transform Obamacare can, of course, keep trying through the political branches.

But it's another case where the court simply doesn't have a good enough reason to sweep democratic processes aside.

D.J. Tice is at Doug.Tice@startribune.com.