Legislating from the bench?

The U.S. Supreme Court has decided to consider whether to grant review of the Defense of Marriage Act. This follows the recent appellate court decision declaring the 16-year-old law unconstitutional. Judges in New York and Boston have now said DOMA violates the 14th Amendment’s equal protection clause and interferes with a state’s right to set marriage eligibility requirements.

But the final word will come from the Supreme Court. The Court has been accused at times of stretching the Constitution to apply in situations it was not written to address. If the Court affirms the recent decisions, it will no doubt be accused yet again of such judicial legislation.

Is that a fair accusation? Let’s consider a related pair of cases: Bowers v. Hardwick in 1986 and Lawrence v. Texas in 2003.