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I generally agree, but ...

> At bottom, this isn't a right flowing from the dictates of the Constitution. Nobody in 1789 would have said that gay marriage is a fundamental right. We acknowledge the right today for the same reason we acknowledge many other rights we did not acknowledge then--society as a whole has agreed to recognize the right

Looking at just the legal aspects, in 1789 (and 1776) we did recognize that 'all men are created equal' and equal protection (and due process might apply too). From those rights flows the idea that a right conferred to some, such as marraige, should not be denied to others.

> It is important that the Court not act ahead of society.

I wonder how much of this is due to the Court being unable to act far ahead of society. The Court has no real power of enforcement; for example, when the Supreme Court ruled for Indians whose land was siezed in Georgia, President Andrew Jackson (now on your $20 bill) famously said "[Chief Justice] John Marshall has made his decision, now let him enforce it."

If they rule and are ignored, they lose credibility and influence and gain nothing. I wonder how often judges take than into consideration (especially judges in lower courts, such as municipal courts).

> Looking at just the legal aspects, in 1789 (and 1776) we did recognize that 'all men are created equal' and equal protection (and due process might apply too). From those rights flows the idea that a right conferred to some, such as marraige, should not be denied to others.

That language is in the declaration of independence, which has no legal effect. The Constitution explicitly creates a system where all men are not created equal.

Equal protection is in the Constitution, in the 14th amendment.

For what it's worth, the 14th amendment was not adopted until 1868, nearly a century later.

Support for interracial marriage didn't pass 50% until the '90s, but SCOTUS ruled decades before that.

The fact that they waited until after support for SSM passed 50% is what's unusual.

The SCOTUS shouldn't wait on consensus. They don't need that. They need to decide if it is legal or not. If it is not, send it back to Congress to fix. While I agree with the ruling, this court has been doing things clearly outside its purview.

> The SCOTUS shouldn't wait on consensus. They don't need that. They need to decide if it is legal or not.

This is a really bad idea, you're basically describing an oligarchy. The Supreme Court is really a consensus-enforcing machine, for the most part.

Congress is not supposed to be a consensus-enforcing machine. The Supreme Court is supposed to make sure the words of the Constitution and the words of the laws mean something. If they don't, then the country is ruled by people, not by laws.

The Supreme Court is a literal oligarchy - it's 9 people who are accountable to no-one. The Senate is a more democratic body, since they can be held to account by voters.

I don't know if this was meant to be a joke but it's rather preposterous. Justices do not make laws, they interpret and apply them, and must do so while being rationally bound and yes accountable to laws and precedent under the framework of common law. Judicial activism is a pejorative term for good reason: they're not there to create or destroy laws. If they did start abusing their power to interpret laws they would be impeached: they actually ARE accountable to congress same as the president.

Also, if the equal protection clause was misinterpreted by the judicial branch, the legislative bodies of the federal and state governments have the power to revise and make it clear that the law was never to be interpreted that way.

There's nothing wrong with oligarchy. It's better than mob rule.

SCOTUS has no police or armies to enforce its edicts. The institution functions entirely on "trust capital." Every time it strikes down some democratically-instituted law, it uses up some of that trust capital. Sometimes, it must spend that capital. But doing it too often erodes faith in the institution, and ultimately, that is the only thing they have.

I'd argue that Citizens United is a great example of that in action. In my opinion, the Court got the law absolutely right in that case. But they used up a lot of trust capital in the process.

SCOTUS has far more than faith. It derives its powers from the constitution, and a constitutional amendment would be needed to destroy it, not merely a lack of faith, and until its destroyed it has the ability to set precedent and make rulings. To say it has no police or armies is simplistic as well, once departmentalization of constitutional interpretation starts occurring, you have a divided nation on the path to civil war. The thought that there wouldn't be Americans willing to take up arms in solidarity with supreme court rulings, and with SCOTUS rulings as their justification is rather naive.

The only time the executive has ignored supreme court ruling I believe was when Lincoln was in charge, and well, to say the nation was divided at that time would be an understatement.

> Nobody in 1789 would have said that gay marriage is a fundamental right.

Its marriage. Its a fundamental right.

It doesn't matter if you are gay or straight.

> It is important that the Court not act ahead of society.

That is another way of saying "Yes, the judicial system is as political as politicians."

One of the primary purposes of the Court is to make sure the political majority can't deny equal rights to everyone in the country. The idea they have to wait for that political majority to exist before "giving people" rights is an awful idea.

> I'm also a strong supporter of abortion rights, but I can't help but wonder if in the long run abortion rights wouldn't be in a stronger position today had the Court waited a bit longer for public consensus to catch up before dictating a result.

https://en.wikipedia.org/wiki/Roe_v._Wade#/media/File:Roevwa... http://www.gallup.com/poll/160058/majority-americans-support...

They did wait for a majority before Roe v. Wade as well. :/

> Nobody in 1789 would have said that gay marriage is a fundamental right.

That's one of those assertions that relies on present-day society always believing they are more socially advanced than earlier ages, and that society moves forward monotonically in lock step around the world.

In fact, modern American society is a lot more prudish about same-sex unions of various types than earlier societies in Rome, Greece, and China at various times. It's very likely that one could find contemporaries of the authors of our Constitution, in comparable circumstances of economic and cultural development, who thought same sex unions are perfectly OK.

The men of 1789 who wrote the Constitution wrote a document they aspired to. Pretty obviously in the case of slavery, but in many other ways.

They explicitly said they could not enumerate rights. If you think otherwise, I'd like to know what you think of the following:

If someone invented a brain accelerator that imparted god-like intelligence, would you have a right to use it, or would the government grant such a right?

If someone cured old age, would you have a right to access that cure? Or would government have a say in this novel, unprecedented thing?

If someone invented an unbreakable code, would you have a right to what amounts to an uncrackable safe for your "documents and effects?"

If someone invented a personal spaceship, would you have a right to go to space, assuming you could do it without endangering others?