Tuesday, August 10, 2010

Legal Commentary: Compromise

The Chicago Tribune puts forward a proposal for a "compromise" on Proposition 8:
[T]he justices might seize on the same middle option used by several states — civil unions. The court could rule that equal protection requires giving gay couples the same prerogatives granted heterosexual couples, but not by the same name.

That course offers a compromise that, while satisfying neither side entirely, accommodates each in its central concern. It would show a respect for democracy and a humility about the role of the judiciary.
I think the Chicago Tribune is making a dangerous mistake about the nature of the Supreme Court.

The Court's job is not the same as the legislature. A legislature's job is to bridge between different communities, and to create legislation that represents the majority while protecting the minority. That, by definition, requires compromise.

The Court is different. The Court's job is to protect an ideal; namely, a set of rights.

The "compromise" outlined above not only satisfies neither side entirely, it does not satisfy the law. The Constitution says that all citizens are entitled to "equal protection under the law." The Court has said clearly that separate but equal is not equal. To create a separate but equal institution (civil unions) would be to not only compromise on this issue, but compromise on the nature of the Constitution, and to return to the Plessy v. Fergussen days.

In another example of "compromise", the Supreme Court devised a "compromise" in the issue of Medicinal Marijuana in Gonzales v. Raich. The aftermath of the ruling basically left it the status quo that marijuana is legal in the state of California, but illegal federally. A citizen in California who had a prescription for medicinal marijuana fell into the strange state of being both a criminal and not one at the same time.

The Supreme Court does have a responsibility to be a moderate Court. But it does not have the same luxury or responsibility to compromise the way that the other two branches can and should.

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