The Supreme Court rarely makes news when it decides not to hear a case, but it did earlier this month, when it surprised many observers by choosing not to entertain any of the seven same-sex marriage cases seeking review in the nation’s highest court. No one should really have been surprised, because the court was right to wait.

Disappointed litigants often say they will take their case all the way to the Supreme Court, but it rarely happens. The justices have wide freedom to chose the cases they will decide, and their time is limited. In recent years, they have held oral argument in only 75 cases or so each year. That is a tiny fraction — less than 1 percent — of the roughly 10,000 cases seeking Supreme Court review every year.

That’s why we’re generally not surprised when the court doesn’t hear any particular case. And in the context of the marriage cases, Justice Ruth Bader Ginsburg had clearly signaled back in September that she thought there was no rush for the justices to intervene. In a public appearance, she reminded the audience that the Supreme Court is only really compelled to decide an issue when different federal appeals courts disagree. And, as of now, all the appeals courts have ruled in favor of same-sex marriage. So, from a narrowly legal perspective, there’s no rush.

But that seems like an awfully bloodless way to think about it, because it leaves out of consideration the feelings of the gay men and women who, today, would like to marry but cannot. I don’t think there is much doubt that the five justices who voted to strike down the Defense of Marriage Act also believe that gay marriage is both a good thing and is required by the Constitution. So why do they not just take up one of the marriage cases and put an end to the debate by making same-sex marriage the law of the land everywhere? (The four conservatives obviously do not want the court to rule now, because their side would lose.)

The justices in favor of gay marriage are right to wait, even though they could prevail today, because no matter what it does, the Supreme Court can’t by itself end the debate about marriage, any more than it succeeded in ending the debate about abortion, or in ending the debate about capital punishment. In those cases, it appears that premature action by the court’s liberals actually undermined liberal objectives.

Before the Supreme Court’s 1972 ruling against capital punishment, public opinion had been turning against the death penalty. In the years that followed that ruling, however, support for capital punishment increased sharply, and indeed became more popular than ever.

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Before the Supreme Court’s 1973 abortion decision, support for legal abortion also had been increasing. Since then, public opinion has remained largely static but become more deeply polarized. When the court reaffirmed the constitutional right to abortion in 1992, the majority called “the contending sides … to end their national division.” More than 20 years later, our national division over abortion remains deeper than ever.

The courts can mandate what our public institutions will and will not do, but the only power they have over the hearts and minds of individual citizens is the power of persuasion, and that power is pretty limited and operates only indirectly, since very few people ever read their opinions.

By waiting to decide an issue, the court allows the ordinary, person-to-person processes of political persuasion and deliberation to take place. Those who favor gay marriage will and should keep doing what they have been doing — persuading their fellow citizens of the goodness and rightness of their positions. Opponents of same-sex marriage, likewise, should welcome the opportunity to continue to make their case.

The Supreme Court has made its perspective clear, and by allowing same-sex marriages to be performed in so many states, has assured that the debate will be conducted on terms favorable to the outcome it favors. But by welcoming the ongoing debate, it shows a measure of respect for those who disagree, and it requires many more judges and political figures, all across the country, to state publicly and clearly the reasons for their positions.

As the court remains on the sidelines, liberals will be hopeful of winning a wider victory in the court of public opinion, while conservatives will look for new ways of making their case, recognizing that they probably don’t have much more time to make it.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.


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