is the title of this Washington Post column by Ruth Marcus in Friday's paper.
In it she goes through the arguments about when SCOTUS should take on an issue, whether it is necessary to wait for public opinion (although in the case of Roe she cites arguments that by the time of Roe legalization had stalled, opposition to abortion was already rising, and 64% of the American people favored legalization).
The key key part of her argument is to address the notion that some things should be left to the Democratic process. She points out the patently unconstitutional things happening in our time with respect to abortion, for example, in North Dakota.
And then she hits the key point in a bit more than a paragraph:
The point of constitutional protections is that some rights are too fundamental to leave to a majority’s whims and prejudices.
The right of a woman to decide whether to bear a child is one. The right of two people to marry is another. There are people who will never agree and states in which they constitute a majority. The Constitution shields individuals from these majorities. If backlash to the rulings of “unelected judges” ensues, so be it.
Further, she cites Michael Klarman of Harvard as explaining why opposition to gay marriage is likely to be less intense than was and is opposition to abortion, because
Those who view abortion as murder understandably feel more intensely than those who express moral distaste for same-sex marriage.
Her conclusion?
In short, the justices shouldn’t worry about the threat of a backlash. They should focus on their constitutional role as a backstop.
This is not a prediction by Marcus. But she used to cover SCOTUS for the Post. It is conceivable that more than few Justices may read and perhaps ponder her words.
There are some things that are simple matters of justice, not subject to popular vote.
That is key.
I agree that the right to choose and the choice to marry are among those.
The choice to marry.
An option for all adults.
A basic human right, not to be selectively doled out because someone does not disapprove of your choice of partner - on the grounds of religion, national origin, color of skin, or sexual orientation.
Read the column by Marcus.
It is worth your time.