By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage — a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being. This course might appeal to centrist justices like Anthony Kennedy, John Roberts and Stephen Breyer — and perhaps could even command a unanimous court, which would have a welcome calming influence on the nation's culture wars.If we welcome the Court's calming of our culture wars — if we believe calming culture wars is a longstanding part of judicial virtue — we ought to compare the benefits of determining once and for all that the choice of marital partner belongs in the hands of the individuals who enter these relationships.
Considerations of these sorts have long been part of the virtue of judicial modesty, too often undervalued by partisans on both sides.
Individual rights matter, and it is the Court's duty to say what they are. If there is no proper case before the Court — if there really is no standing — then the Court has the duty to shut up. But the Court should no more shrink from saying what rights are than it should strain to find them to be something other than what they are.
If the Court could demonstrate its capacity to live up to these duties and if we could believe in the accuracy of these announcements about the substance of our rights, then telling us what our rights are ought to have a calming effect. And yet even if the Court's reputation is so far gone that we can't believe its announcements anymore, the duty remains.
Maybe it won't be calming, but the notion that the Court must calm us, when it is a question of our rights, defies the meaning of rights.