Should the Supreme Court sync a ruling on marriage to public opinion?

U.S. Justice Antonin Scalia has already conceded that laws banning same-sex marriage are unconstitutional, according to one constitutional scholar. And the U.S. Supreme Court is “very likely” to invalidate the federal Defense of Marriage Act once it reaches the U.S. Supreme Court, says another, generally conservative, expert.

These are just two of the conclusions from more than a dozen constitutional law jurists who participated in a recent two-week long discussion of what most consider an inevitable case before the nation’s highest court. And most of the opinions bet heavily that the Supreme Court will have to acknowledge that bans on same-sex marriage –or laws limiting same-sex couples to a license for a civil union or domestic partnership—do violate the U.S. Constitution’s guarantee of equal protection.

If they are right, then gay legal activists should be demonstrating a sort of “bring-it-on” attitude about putting a question before the Supreme Court, which holds its first conference meeting for the 2011-12 session on September 26.

But here’s a surprise: Not every gay legal expert is in favor of putting such a question to the Supreme Court right now.

Gay law professor William Eskridge Jr. was one of several essayists in the symposium last month to argue that the same-sex marriage conflict “ought not be resolved one way or the other [by the Supreme Court] until public preferences become more settled.”

“The Supreme Court ought to avoid a final judgment on the constitutionality of marriage law’s discrimination against lesbian and gay couples until the nation is substantially at rest on the issue,” wrote Eskridge in his August 15 post in the scotusblog symposium. “Admittedly, that moment is coming more rapidly than anyone predicted, but that moment has not yet arrived.”

His argument is that, when the Supreme Court issues a monumental ruling too soon on an intensely controversial issue –such as the right to abortion or the right to private, sexual relations between same-sex adults— it raises “the stakes of politically intense issues to the detriment of our pluralism.”

Former Reagan era Solicitor General Charles Fried expressed a similar position in the scotusblog symposium. He said he worries that a Supreme Court ruling on the issue would “abort” a gradual acceptance of same-sex marriage that is already taking place.

“I believe that a strong liberty, equality and association claim can be made for allowing same-sex couples to form civil unions with the same legal effects as marriage,” wrote Fried on August 25. “Marriage is different only in that it traditionally symbolizes the citizenry’s celebration of the union, and I do not believe people should be forced by a Supreme Court ruling to celebrate what they deplore.” But even Fried suggests a victory for same-sex marriage is likely.

“Ideally, Congress would repeal DOMA before the case reaches the Court,” said Fried, “but with the dysfunctional Congress we enjoy today that is most unlikely to happen. Thus a ruling is unavoidable and its outcome is very likely to be invalidation of DOMA.”

The symposium included essays from some of the most respected legal scholars in the country, examining “the future of the Defense of Marriage Act and Proposition 8” at the Supreme Court. Although a case involving the merits of either law has not yet reached the high court, two or three “are likely to reach the Court soon, even if not this Term,” said scotusblog symposium manager Kali Borkoski.

The essays, 21 in all, provided a glimpse into the sorts of arguments that will almost certainly be made when Perry v. Brown, (the California Proposition 8 case) and/or one of several cases challenging DOMA make their ways to the high court.

Not everyone agreed with Eskridge and Fried. IN The last post of the symposium, famed Harvard law professor Laurence Tribe argued that it was “perverse” to make gay couples “wait a bit longer for their rights.”

“Those who advance this essentially gradualist view ground it in hard-nosed realism and assure us that, even though they recognize the justice of the case for same-sex marriage, legislative change is simply preferable as a matter of democratic legitimacy or of some strategic consideration such as avoidance of socio-political backlash,” wrote Tribe.

“The most obvious historical analogy” to this sort of strategy, said Tribe, is the Supreme Court’s “disgraceful and widely condemned decision to duck the issue of interracial marriage when it first presented itself in Naim v. Naim.”

Naim v. Naim was a 1955 decision in which the Virginia Supreme Court ruled it permissible for state law to ban interracial marriage. The U.S. Supreme Court refused to hear an appeal. It wasn’t until 1967 that the U.S. Supreme Court took the better-known Loving v. Virginia that it ruled the ban on interracial marriage in Virginia and other states was unconstitutional.

Refusing to hear a case challenging a ban on same-sex marriage, as it refused Naim, said tribe, “is hardly the kind of precedent that any Justice would wish to follow.”

“And, to make matters worse,” said Tribe, “the Court would have to perform legal acrobatics far more painful to behold than those employed in Naim, because Lawrence laid the groundwork for striking down bans on same-sex marriage in … terms so stark that Justice Scalia, in his ferocious Lawrence dissent, as much as conceded that a rejection of the federal constitutional right to same-sex marriage could not be reconciled with the Lawrence holding or with its underlying rationale.”

Tribe may be right, but there is ample evidence of the high court’s ability and willingness to perform “legal acrobatics” to avoid being where the Constitution demands it must go. To wit: Bowers v. Hardwick, 1986. In that case, a majority of the Supreme Court upheld state laws banning consensual sex between same-sex partners by simply declaring that there is, in the Constitution, no fundamental right to engage in homosexual sodomy.

But as Justice Harry Blackmun said in his dissent, the case wasn’t really about whether there was a “right to engage in homosexual sodomy.”

That was essentially the tact used by New York’s highest court in 2006, when it ruled the state constitution “does not compel recognition of marriages between members of the same sex.”

“Whether such marriages should be recognized,” said the state court, “is a question to be addressed by the Legislature.”

The Washington State Supreme Court then issued a similar ruling, saying it was a question for either the legislature or a popular vote.

So, the legal acrobatics have already been invented and exercised. The question is whether the public’s comfort level has advanced far enough toward accepting marriage between same-sex couples to embolden the Supreme Court to do its job.

Eskridge says “not yet.

But here’s an interesting thought: In 1967, when the U.S. Supreme Court ruled that states could not bar interracial marriage, only about 20 percent of Americans (according to a Gallup Poll) “approved” of interracial marriage. Today, polls are consistently showing more than 51 percent of Americans support the right of same-sex couples to obtain a marriage license.

10 Responses to Should the Supreme Court sync a ruling on marriage to public opinion?

  1. Current says:

    Why does public opinion even matter in this case? The whole point of the constitution is to protect minorities.

  2. Arouete says:

    First, Scalia said? Can we have some citation please?

    In any event thanks for a superb discussion but no! “Current” is absolutely correct! The essence of the Bill of Rights and an independent judiciary is to protect against majority tyranny: there are some things you just don’t get to vote on.

    Justice Robert H. Jackson said it the best, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. … fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

    Personally, I think it’s a bit of a disgrace that LGBT activists take the path of public relations and propaganda and have done so little to educate people. This legal dynamic is easy. This is not rocket science. Decades into this debate and I am still appalled how little our community understands the basic legal principals. They parrot boilerplate bumper-sticker platitudes (‘separate is not equal’) but can not argue their legal way out of a paper bag. A parrot does not understand but just mimics. Activists have really failed in this regard and MISERABLY.

    The very essence of the Prop 8 IS, ‘Sorry…. but you do not get to vote on it!” The court is supposed to protect minorities from majority bigotry. Just because the tide of public opinion is shifting in our favor does not mean it’s a good idea for the court to lend an ear to the mob.

  3. Arouete says:

    And ironically the argument reveals its own fallacy for the invidious holding of Bowers (just like Plessy) WAS the result of a court that eschewed the plain language of the 14th amendment to ‘sync it’s ruling to public opinion.’ Be careful what you ask for.

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  5. Dave says:

    @Current — public opinion matters because the U.S. often doesn’t live up to its own ideals when it comes to equal protection under the law. Read Section 1 of the 14th Amendment sometime. It pretty clearly establishes equal protection for ALL citizens … and based on its definition of citizen, that’s regardless of race, gender, and (I would argue) sexual orientation. And yet in Section 2 it is already contradicting itself by restricting its application to male citizens. It took another 50 years, a whole lot of evolving public opinion, and an entirely separate amendment, before women got the right to vote. And it took a full century before blacks in many parts of this country got that same right in any practical sense.

    Sometimes courts and the Constitution do drag people unwillingly into a future where equal rights are more highly regarded. The SCOTUS, in Loving v. Virginia, overturned laws banning interracial marriage in 16 states, against majority opinion in many, if not most, of the people in those states. So it happens.

    On the other hand, one of the more important court judgments in recent years regarding same-gender marriage, a NY Court of Appeals case (I think) that was argued along lines very similar to Loving, went against same-gender marriage for a couple of reasons. One was that homosexuals haven’t endured the same kinds of discrimination that blacks did. (I’m not even quite sure what that means. They need to suffer longer? The judges weren’t quite ready to render a judgment that admits that people don’t choose to be gay?) The other reason is that they didn’t want to render a judgment that would implicitly suggest that many people in the US are bigoted for opposing same-gender marriage. (Could there be a rationale that is less based on the Constitution, more linked to public opinion, and more subject to change as time goes on?)

    So arguing based on constitutionally-based guarantees of equal protection is valid and good. But just keep in mind that here, in the US, oftentimes equal rights are granted only when the majority says it is time.

  6. Bill says:

    good thing we didn’t take the same approach with giving women the vote, inter-racial marriage, desegregation, etc.
    give me a break – when what’s right is right, where is the leadership?

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  8. Arouete says:

    The debate you refer to reminds me of Christopher Hitchens wonderful essay, “Goodbye to All That: Why Americans Are Not Taught History.”

    You may not fully realize it but your last “interesting thought” is the most important point. In historical fact, public opinion follows the courts – not the other way around. When California was the first to strike down its anti-miscegenation law (purely under a federal (not state) analysis btw) the vast majority of Americans were against it-over 90% When SCOTUS struck them all down in Loving the majority of Americans were, as you note, against that too. Indeed, the cries went out to impeach the chief justice and amend the Constitution. When Brown struck down Plessey the majority of American were against that two. And when Lawrence struck down Bowers that was the spark that infuriated the Christian right and so inflamed the debate. Yet in each example (and there are many, many more) progress in moving public opinion moved slow and afer each decision public opinion shifted more quickly – indeed at a rather hectic pace. Why has public opinion shifted so quickly? Public opinion follows the courts – not the other way around.

    Afraid of a Bowers? Really? Larry Kramer WAS RIGHT, “That’s the problem with gay men today …. Where is the outrage? …. We should have been to federal court long ago… You lose? So what! … You come back again.” That was not an editorial but a report. Please notice how this “patchwork” state law pattern has slowed progress. Where has it gotten us? After all, there is time between Hawaii and now then there was between Bowers and Lawrence.

    If they wait to persuade a majority what minority even needs an independent judiciary? What’s the point? Tribe’s rebuke to some of his colleagues is spot-on: “Perverse.”

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  10. Jose says:

    I believe there is a very important issue that is not being considered here. In 1967 80% of the population was opposed to interracial marriage, And yet, at the time of SCOTUS’s decision in Loving no less than 34 state legislatures had banned laws prohibiting interracial marriage. Surely, with 80% of the population opposed to interracial marriage, it would seem that a higher amount of state legislatures could have been overturned by voter referendums had the public wished it. Why didn’t they?
    I believe it is Because on a fundamental level, the population understood that their major opposition to interracial marriage was due to racism. Other than that that, in what way did interracial marriage violate their understanding of marriage? Individuals of different races can have children and it did not require that their basic understanding of marriage be redefined. Allowing interracial marriage, while unsavory for them in 1967, did not violate there understanding about what marriage is.
    Same sex marriage, however, is different in the public’s view. In order for it (same sex marriage) to gain public acceptance, peoples understanding of what marriage is would require a major redefinition: something that the decision in Loving did not require. To date, only a handful of states have legalized same sex marriages either through their legislature or through the courts.
    Professor Eskridge is right to be concerned.

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