The Chicago Tribune and Andrew Sullivan think they’ve found a way for Justice Kennedy to, when the Proposition 8 lawsuit crosses his desk, split the baby — civil unions. Kennedy, writing for the Court, could reach the merits, only to affirm the transcendental importance of “traditional” marriage (I’m trying to channel his penchant for uselessly overwrought dialogue), but require the federal government and the several states to grant gay couples marriage rights, under some other name.
It won’t happen.
The problem is this: while the “marriage” versus “civil union” distinction makes political sense, and permits a pragmatic half-step towards equality through the political process, on current law, federal benefits are inseparable from the term “marriage.” All federal laws refer to marital pairs, marriages, etcetera. To “split the baby,” Kennedy would have to create a new body of law, from whole cloth, and take the incredibly political act, on his own, of severing marital rights from the marital title. To do as much would be true “judicial activism,” in the non-polemical sense. Judges most often solve cases by stating the parameters within which the parties can create their own solutions and, if necessary, remanding to relitigate the question of whether the solution holds. Ordering an affirmative act, separate from the case universe, is rare. The most recent example of such judicial lawmaking might be busing. That was probably necessary, but we all know how well it worked.
And, while solving one inequality, ordering all state and federal entities to create some marital status of lesser dignity would trade one inequality for another. While gay Americans would end the day better than they began it, to be sure, I’m not sure we want the federal bench in the business of creating inequities. It would be as if Plessy had never had access to the train passenger car, and the Supreme Court created a blacks-only car, just for him, and said affirmatively, “this is good enough.” It’s distasteful.
Some middle ground remains. The Court could, as explained, issue an opinion finding the current exclusionary framework invalid, and remand while retaining jurisdiction to wait for every state in the Union, and the federal government, to come up with a solution. That would do away with any concern about judicial lawmaking, but again, something like that hasn’t happened since Brown. And that was on a unanimous opinion.