How to make a thorny constitutional question disappear.
Let's say you're a justice on the Washington State Supreme Court. You have a nice life, a quiet life. Cozy chambers. Huggable clerks. And then in March of 2005, you hear oral arguments in a case about the state ban on gay marriage.
Eighteen months later, the dumb decision is still pending. You've tossed. You've turned. What to do?
If you vote to strike down the ban, the president will take your name in vain. You'll be vilified as an "activist" in the national media. Bloggers will publish photos of your children and pets. You'll have to apologize for the courage of your convictions for the rest of your career.
If you vote to uphold the ban, on the other hand, you'll get to join your colleagues on the New York and Nebraska courts, who just did the same thing. You'll also find yourself in the warm embrace of your buddies on the Georgia and Tennessee courts (who ultimately ruled against gay marriage in recent weeks on narrower, more technical, terms). Nobody will excoriate you in the op-ed pages. Instead of causing widespread fury, you will unleash, at most, widespread resignation.
Still, you feel bad. You hold no personal animus toward gay people. You even think there is something slightly mean-spirited behind your state's Defense of Marriage Act. You talk it over with your wife/husband/clerks. It's a pickle. Months pass.
Until you hit upon the solution: Shift the blame. Make the legislature the bad guys. Find a way to frame the ban on gay marriage that makes it impossible to strike down. Rule that unless the ban is utterly insane, it's constitutional. Suggest that as long as the legislature passed it, it must be rational. Use the word "deferential" six times.
The key to appearing reasonable will be to vilify the dissenters. You'll want to use your majority opinion to emphasize that judges who vote their "personal views" are behaving like "legislators." Quote liberal lion Supreme Court Justice John Paul Stevens for that proposition. Then condemn—without quite using the words "judicial activist"—the dissenters for having been "uncharacteristically … led to depart significantly from the court's limited role when deciding constitutional challenges."
Be sure to tell your "readers unfamiliar with appellate court review" that your state's decision to ban gay marriage is solely the fault of the legislature. Because you yourself, of course, still love everyone.
Easy? Not really. Because even if you find that there is no "fundamental right" for gays to marry; even if you find that they are not a protected class deserving of special constitutional scrutiny; even if you find that the ban did not violate the state "privileges and immunities" clause, all that constitutional high-stepping still leaves you where the Massachusetts Supreme Judicial Court was only starting its own constitutional analysis—when it faced the same basic question about same-sex marriage in 2003: You still need to do the hard work of analyzing whether there is any rational reason for banning gay marriage.
That is, after all, why you became a judge. You are there to sort out whether the state's articulated goals fit the law they've enacted. You'll need to be wily: You can start by insisting that any law is "rational" so long as it contains some nouns and verbs. You can quote the U.S. Supreme Court for the proposition that: "In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous."
Dahlia Lithwick writes about the courts and the law for Slate.