At The Wall Street Journal
, legal scholar Michael McConnell writes:
We learned from Roe v. Wade that the Supreme Court endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution. The court sometimes intervenes when the legislatures of the 50 states are approaching a consensus. When it jumps into a live political controversy, the justices look like they are acting like legislators.
The system today, without the Supreme Court's intervention, is working as it should. Representatives of the people are deliberating. "We the People" are thinking. So far, nine states have extended marriage to same-sex couples; many others chosen to explicitly endorse traditional marriage. Those choices distress advocates on either side of the matter when their wishes have been disappointed.
But when all of us have an equal right to be heard on an issue, and to participate through our representatives in making the decision, it is easier to accept the outcome than when unelected judges make moral pronouncements from the bench. Change that comes through the political process has greater democratic legitimacy.
One element of deliberation is a willingness for participants to change their minds. Pew reports
The rise in support for same-sex marriage over the past decade is among the largest changes in opinion on any policy issue over this time period. A new national survey finds that much of the shift is attributable to the arrival of a large cohort of young adults – the Millennial generation – who are far more open to gay rights than previous generations. Equally important, however, is that 14% of all Americans – and 28% of gay marriage supporters – say they have changed their minds on this issue in favor of gay marriage.