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Did Souter give a hint to go slow on gay marriage?

This article first appeared in the St. Louis Beacon, July 2, 2009 - Much has been made about David Souter's courtly, poetical farewell from the bench earlier this week. But a passage in one of Souter's last dissents is getting even more attention as a possible clue that advocates of gay marriage should go slow.

Walter Dellinger, solicitor general during the Clinton administration, has pointed to a passage in a dissent Souter wrote disagreeing with the court's refusal to recognize a constitutional right of prisoners to obtain DNA evidence. Souter said he agreed with the majority that in deciding to recognize "an individual right unsanctioned by tradition ... the beginning of wisdom is to go slow."

He added that it is "essential to recognize how much time society needs in order to work through a given issue before it makes sense to ask whether a law or practice on the subject is beyond the pale of reasonable choice, and subject to being struck down as violating due process."

Substantive due process - recognizing rights such as the right to marry and the right to privacy - is the portion of the Constitution that would come into play in a decision about gay marriage.

"We can change our own inherited views just so fast," Souter continued, "and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. The broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary."

Souter's observations from inside the court are relevant to a debate within the gay rights and civil liberties community about whether it is too soon to ask the Supreme Court to recognize gay marriage. Many legal tacticians for the gay community were not thrilled that David Boise and Ted Olson - opponents in the legal fight over the 2000 presidential election results in Florida - went to federal court this spring to challenge Proposition 8, the California referendum banning gay marriage. Critics of that suit fear that the Supreme Court is not ready to go so far as to recognize gay marriage.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.