Compare and contrast

You may have heard the U.S. Supreme Court recently agreed to decide a set of same-sex marriage cases. (See here and here, for example. You may file this tidbit under “deciding to decide.”) Let’s compare and contrast the constitutional questions presented in these pending gay marriage cases with the original questions presented in Brown v. Board of Education, decided in 1954. Here are the two questions the Supreme Court will decide in the upcoming gay marriage cases:

1. Does the 14th Amendment require a state to license a marriage between two people of the same sex?

2. Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

By contrast, consider the four separate legal questions the Supremes decided in Brown v. Board. Compared with the general and open-ended legal questions in the gay marriage cases, notice the high degree of specificity in this next set of legal questions:

1. What evidence is there that the Congress which submitted and the State legislatures and conventions which ratified the 14th Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?

2. … was it nevertheless the understanding of the framers of the 14th Amendment (a) that future Congresses might, in the exercise of their power under section 5 of the Amendment, abolish such segregation, or (b) that it would be within the judicial power, in light of future conditions, to construe the Amendment as abolishing such segregation of its own force?

3. On the assumption that the answers to questions 2(a) and 2(b) do not dispose of the issue, is it within the judicial power, in construing the 14th Amendment, to abolish segregation in public schools?

4. Assuming it is decided that segregation in public schools violates the 14th Amendment, (a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or (b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?

By the way, aside from the Court’s own Delphic answers to these contentious constitutional questions, is there any way of testing whether one’s answers to these questions are true or false?

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