Countries with well-developed rule-of-law cultures often have a myth that justice is blind – that judicial decisions are made based on fact, not based on personal values or beliefs. However, this view does not account for the massive shifts in legal interpretation that have occurred over time as social values have evolved. In particular, in 1896 seven U.S. Supreme Court justices decided in the case of Plessy v. Ferguson that racial segregation was permissible so long as it met the standard of “separate but equal.” This standard was, of course, overruled in 1954 in the case of Brown v. Board of Education of Topeka.
The obvious relationship between judicial outcomes and the personal beliefs of the judges can – or should, anyway – make life very difficult for judges. A wise judge not only analyzes the facts, the relevant statutes, and the legal precedents, but he or she must also gauge the pace of change in the underlying social values. As social values evolve, the interpretation – and repute – of certain legal decisions may change, as in the case of Plessy. More importantly, when legal decisions do not keep up with social values, the law becomes irrelevant – even inimical – to their lives. In defense of the Plessy justices, they probably gauged the pace of change with adequate precision. It took more than 50 years for Plessy to be overturned, and at least another 15 for formalized segregation itself to be dismantled.
In the case of the recent Prop 8 ruling by Judge Vaughn Walker, one has to ask if the underlying social values are shifting more rapidly than they did in the case of “separate but equal” segregation. Before 2003, sodomy was illegal in some parts of the U.S.; less than a decade later, gay marriage is the law of the land in several states. Other countries, including Spain and Argentina, now allow gay marriage. Furthermore, support for gay marriage in the U.S. is much higher among young people than among their parents and grandparents, suggesting that society’s values on this issue will shift with the passing of time. A majority of those aged 18-29 – remember, these people grew up with TV’s “Will and Grace” and with other prominent gays and lesbians in the public sphere – support gay marriage in all but 12 states (ref). This data support forecasts by Manuel Castells and others that the traditional nuclear family will soon be viewed as an artifact from the past.
So while the ultimate outcome in the specific case decided by Judge Walker may be in doubt, it remains highly likely that gay marriage will be permitted throughout the U.S. within a very short period of time. Thus, for the U.S. Supreme Court, the question to be decided is not so much whether gay marriage should be a protected right, but rather whether they want to be the authors of a decision that, like Plessy, will be seen – quite possibly during their own lifetimes – as a denial of the rights of many Americans predicated upon a set of antiquated prejudices that are no longer widely shared.
