The Supreme Court heard two days of arguments this week on the constitutionality of Proposition 8, the 2008 law banning same-sex marriage in California, and the Defense of Marriage Act, the 1996 law banning federal recognition of same-sex marriage.
DOMA presents a fairly easy legal decision because it was clearly driven by anti-homosexual sentiment and all of the lower courts that have already heard it have ruled, according to The New York Times, “there is simply no good reason for Congress to refuse to treat all state-recognized marriages equally.”
The Proposition 8 case, Hollingsworth v. Perry, however, holds the potential to be a landmark, watershed case that asks the question: Does the Constitution’s guarantee of equal protection allow legal distinctions between same-sex couples and couples of the opposite sex?
Proposition 8, approved by 52% of voters in 2008, is unique in that it revoked the right to same-sex marriage that had existed in California and had already allowed 18,000 same-sex marriages. It was declared unconstitutional by a federal appeals court in San Francisco on the grounds that once a state grants a federal right like marriage, it cannot later take it away, even by voter initiative. Proponents of the law argue that only male-female couples can produce children, therefore creating a distinction between same-sex and opposite-sex couples. The Constitution, they argue, requires only that a state “treat similarly situated people similarly.”
There are four ways that the decision can go when the Supreme Court makes their ruling sometime before their session ends in late June.
It seems as if the obvious favored outcome for supporters of gay marriage would be the sweeping federal ruling. This is not automatically so.
Aside from the obvious implications for the status of gay rights, this case holds weight in determining the role and responsibilities in the Supreme Court. It reopens the discussion that stemmed from the pivotal Roe v. Wade decision of forty years ago. Ruth Bader Ginsberg has been quoted by both the right and left in the media, stating that Roe v. Wade was a mistake in that it went “too far, too fast,” and implying that the Court should have invalidated the restrictive Texas ban that was in front of them and left overarching policies for another day.
“The Supreme Court’s decision was a perfect rallying point for people who disagreed with the notion that it should be a woman’s choice. They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges,” said Ginsberg at Princeton in 2008.
Prof. Micheal J. Klarman of Harvard Law School advocates that the Court keep this lesson in mind and make the analogously logical choice to strike down Proposition 8 only as it applies to California, saying that Roe v. Wade’s tragic mistake was that “the court essentially took the laws deregulating abortion in four states and turned them into a constitutional command for the other 46,” resulting in significant backlash. This points at the concern that Americans generally show more willingness to agree with, or at least accept, measures that pass through a legislature than decisions made solely by nine unelected judges.
Ginsburg’s argument about the Roe backlash is heavily disputed. It is predicated on the notion that popular opinion would have led to state adoption of the liberalization of abortion laws at an only slightly-reduced rate. But Profs. Greenhouse and Siegel of UCLA argue that, before Roe, progress had all but halted in state legislatures and a Catholic-led minority was gaining ground, particularly after Republicans began using the issue as a “national, politically polarizing linchpin… after Pat Buchanan advised Richard Nixon to use it to peel off some Catholic voters from the Democrats.”
Hollingsworth v. Perry stands squarely in the looming shadow of the nation’s litigation. According to David Cole of The New York Times, “the court [could] rule that the Constitution commands recognition of same-sex marriage on equal terms with opposite-sex marriage,” under the assumption that “a decision to the contrary would be a modern-era Plessy v. Ferguson.” But in deference to Roe v. Wade, he advises caution, stating “History suggests it would be unwise for the Supreme Court to impose a uniform solution on the nation now. Doing so could touch off huge civil resistance in the conservative states,” and raising the point that gay marriage is “overwhelmingly” supported by young people and that “public opinion has shifted faster than on almost any other social issue in history,” making it only a matter of time until state law follows.
The Roe backlash narrative is the main reason why some politicians who support gay marriage might oppose this particular decision in favor of it. And Greenhouse and Siegel ask the question “Does litigating produce conflict that legislating would not?” Does it “shut down ordinary politics and give birth to a new, deformed politics”? The answer is a fairly-resounding yes, but the real question is, when is it worth it to take the risk?
Klarman says that it is not a given that this motion is as much of a risk as Roe v. Wade was. “For an abortion opponent, abortion is murder, which means the intensity of their commitment to resisting Roe was considerable, for the gay marriage opponent, how will their lives change is the openly gay couple living down the street can now obtain a marriage license?” With the possibility of a backlash called increasingly into question, the question that the discourse is largely ignoring is whether or not the threat of a backlash is reason enough to evade the decision.
Only in an article by an unaffiliated Salon contributor have I seen it mentioned that “the point is that the courts recognize
rights even when they’re politically unpopular”— a cornerstone of the litigation vs. legislation conversation that we’re failing to recognize. When elected legislators make a decision, they are ostensibly acting based on the interests of their constituents. When litigators make a decision, they are acting with objective deference to the Constitution. They don’t have the same responsibility to popular opinion. The difference between legislation and litigation is an opportunity, not a limitation.
Recognizing and exercising to the fullest extent their responsibility to protect inalienable human rights, as outlined by our Constitution, is what the Supreme Court should do, and what it is entitled to do, and I for one to do not foresee, nor very much care about, any potential “backlash.”
Original Author: Kaitlyn Tiffany