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Posted on Wed, Mar 27, 2013 : 6 a.m.

Gay marriage: Should the High Court decide for the nation?

By Wayne Baker


This is the Warren Court that, in 1954, handed down Brown v. Board of Education. That landmark decision overturned the 1896 Plessy v. Ferguson ruling, which had allowed state-sponsored segregation. The Warren Court ruled 9-to-0 that “separate educational facilities are inherently unequal”—shifting the civil rights movement into high gear.

Editor's note: This post is part of a series by Dr. Baker on Our Values about core American values. This week Dr. Baker is discussing gay marriage. Supreme Court watchers try to divine how the justices will vote, interpreting words, tones, and gestures. After hearings yesterday on California’s ban on same-sex marriage, the divinations suggest that the high court won’t make a nationwide ruling for or against same-sex marriage. Rather, it may leave the decision up to the individual states, allowing each one to experiment.

If that happens, will you be satisfied?

Earlier Supreme Courts have left other matters to the states — such as racial voting rights and desegregation — then later had to step in to make nationwide rulings.

If gay marriage is left to the states, there is one place — even in a state with a constitutional amendment banning same-sex marriage — where the law doesn’t apply: Native American tribes. These are considered to be “domestic dependent nations.” They are sovereign nations, though not quite on par with, say, Canada. As a sovereign nation, they are not bound by state laws.

A case in point is The Little Traverse Bay Bands of Odawa Indians in northern Michigan. The tribe is not bound by Michigan’s constitutional ban on gay marriage. Earlier this month, the Tribal Council voted in favor of legalizing same-sex marriage. Soon after, it performed its first marriage ceremony of two men.

Would you like the Supreme Court to make a nationwide ruling?

Would you be happier with state-by-state laws?

Wayne Baker is a sociologist on the faculty of the University of Michigan Ross School of Business. Baker blogs daily at Our Values and can be reached at or on Facebook.



Wed, Mar 27, 2013 : 8:25 p.m.

Also, half of your article is about Native American Tribes, which is completely irrelevant to the Supreme Court case. If you wanted to you could reverse the point you were trying to make and say "Even in states that allow same-sex marriages, Native American Tribes within those states can still deny same-sex couples the right to marry", and it would still be equally as irrelevant to the Supreme Court case.


Wed, Mar 27, 2013 : 3:55 p.m.

I'm bothered by how you discuss the Court in this article. You seem to imply that deciding whether to make a nationwide ruling or leave decisions to the states is a policy question and not a legal question, and the justices should be asking themselves "is this something that would be good nationwide or would it be better to let the states experiment on their own in this laboratory of democracy?" That's what you elect congresspeople for. The Court should only be asking "Does ___ violate the Constitution and is ____ the constitutionally prescribed remedy for your woes?" In Brown v. Board they didn't say "segregation is illegal because it is unjust, immoral, etc." they said it violated the equal protection clause of the Constitution. Most people barely remember anything from their high school civics class and have simplified notions of how great America is because we have three branches of government and a Constitution with separation of powers. Posing the question "what is the role of the Supreme Court and the judicial branch?", too many people will answer "protecting the minority from the rule of the majority". By interpreting the law, the Court oftentimes does protect the minority from the majority, but that is incidental and not their primary function. The way they teach the civil rights cases in school makes too many people simplify their knowledge of the role of the judicial branch to place protecting minorities from the majority and ensuring fairness and equality above following the law. You and other articles perpetuate this misinformed belief by asking your readers whether they would be satisfied with a Supreme Court decision to leave it to the states or if they would like a nationwide ruling instead of asking if they believe the constitution requires it. If you want to ask people if they support gay marriage leave the Supreme Court out of it, and if you want to ask about a pending legal case leave


Wed, Mar 27, 2013 : 2:41 p.m.

Gay marriage is going to become legal. There's already a slim majority of us that believe it should be and the population seems to be shifting even more in support of it. There's no reason Congress shouldn't have the votes needed to repeal DOMA in the next few years. They might even be able to gather the votes this year. I'd speculate that the Court took this case knowing from the start that they would be deciding against it. Since Congress generally likes to sit on its hands on divisive issues, a ruling that acknowledges the Court's lack of Constitutional authority to legalize gay marriage when the majority favors it for the first time ought to be enough to pressure Congress to act. The Republicans would be better served to hop on board now than to let it become a campaign issue for the 2014 midterms.


Wed, Mar 27, 2013 : 2:13 p.m.

The only people who are happier with state by state laws are people who hold a minority viewpoint and want to be left alone. Everyone else has an opinion on how the world ought to be, and if it's right for them, it's right for everybody so they'd rather impose it on the nation and the world than just their state or community. The vocal majority wants gay marriage to be legal. If you ask a random gay marriage supporter whether the Supreme Court ought to legalize it or if Congress ought to pass a law, they will give you a blank stare and tell you they don't care as long as it gets done. The common view of the role of the court now is no longer to uphold and interpret the law as written, but instead to ensure 'fairness' for all, and everyone wants the court to make their decisions on their belief of what is 'fair' rather than what is legal. They protest in front of the Supreme Court building as if their opinion ought to sway a Justice's decision, and forget that their role is to be accountable to the letter of the law in the Constitution or written by the people's elected representatives and not directly to the people. If the Court was meant to be swayed by popular opinion, they probably would not have reached many of their past decisions that you would praise them for. If you want to influence the court's decision, don't stand outside with a sign and chant equality, come up with a compelling legal argument and file an amicus brief. When the decision comes out and the Court does not legalize gay marriages nationwide, people are going to be furious and calling the justices intolerant homophobic religious bigoted old men who hate equality, and they will ignore the likelihood that the justices are acting in good faith to do what the law requires. All of the justices are plenty capable of ignoring the law, voting their conscience to do what's 'fair', and dressing it up in legalese to give their decision the appearance of correctly applying the law, but should they?


Wed, Mar 27, 2013 : 1:19 p.m.

I would love to see a nationwide ruling. As a straight supporter of marriage equality, I don't believe this has anything to do with sex and everything to do with equal rights. Marriage equality will hurt no one and benefit many. And, ultimately, it's just the right thing to do.