The Supreme Court will soon hear what some have already begun calling the defining civil rights case of our era. In 1996, Congress passed the Defense of Marriage Act, which among other things, exclusively recognized traditional marriage for the purposes of the federal government. In 2008, the California Supreme Court found a right to gay marriage embedded in the California state constitution. Later that year, voters passed a popular referendum known as Proposition 8 that reinstated only the traditional definition of marrying back into California’s highest law.
The question before the Supreme Court now is whether DOMA or Proposition 8, both of which recognize only traditional marriage, violate the Fifth or Fourteenth Amendment rights of gay couples to due process and equal protection under the law. While the Court prepares to rule on these issues, proponents of gay marriage must recognize that the broader question of whether gay couples should be allowed to marry is a question that only the legislature can effectively answer.
Ten states, including New York, have adopted gay marriage. More recently, some states have even passed it through popular referendums. However, opposition is still widespread, and the vast majority of states refuse to recognize the institution. Twenty states have constitutional prohibitions against same-sex civil unions and gay marriage. Another 17 states ban gay marriage in either their state constitutions or laws. It is important to note that this opposition is not geographically limited, but extends to nearly every corner of the country. Commitment to traditional marriage remains a national, rather than a regional, political majority.
Some argue that recent Supreme Court decisions have paved the way for a constitutional right to gay marriage. They point to: Loving v. Virginia, the decision that struck down bans on interracial marriage; Lawrence v. Texas, which struck down bans on homosexual sodomy; and Romer v. Evans, which ensured that local Colorado municipalities could pass anti-discrimination measures to protect gays. Proponents of gay marriage hope these cases indicate that the time has come for the Supreme Court to establish full gay marital equality.
As politically persuasive as these proponents’ arguments may be, their legal basis is somewhat questionable. To start, equal protection and due process under the Fifth and Fourteenth Amendments have never been interpreted to include gay marriage. A large majority of states today still stand in opposition to that interpretation.
The majority in Lawrence, for instance, makes a point of saying that although bans on homosexual sodomy are unconstitutional, the Court was by no means establishing a right to gay marriage. There is a constitutional distinction between conduct that a state cannot prohibit and conduct that a state has an obligation to endorse.
The Court’s reasoning in Loving was narrow and involved specifically the role that anti-miscegenation laws played in perpetuating a broader system of unconstitutional racial discrimination. Clear distinctions between who was “white” and who was “black” were pivotal in enforcing segregation, which anti-miscegenation laws accomplished by regulating procreation and genetically separating the races. But bans on gay marriage are not the key factor in the existence of homosexual discrimination, which is comparable neither in nature nor degree, to racial discrimination in the South.
In many states, including those that do not recognize same-sex marriage, gays enjoy legal rights specifically tailored to protect them as a group, such as hate crime legislation, as well as the rights enjoyed by all citizens (freedom to assemble, to vote, etc.). The same could not have been said for African-Americans living under Jim Crow who suffered mob lynchings with no public response and consistently faced state violations of basic constitutional protections. The reasoning in Loving was not that each American has a right to marry whomever they choose, but rather that anti-miscegenation laws were facilitating unconstitutional racial discrimination. That reasoning does not apply to gay marriage.
The best support for proponents of gay marriage comes in Justice Anthony Kennedy’s passionate majority opinion in Romer. He argued that discrimination protection for immutable characteristics such as homosexuality is not a unique or “special right”, but rather a basic entitlement of every American. A state cannot deny equal protection of this right on the basis of sexual orientation simply because the majority disfavors that particular group. Romer could be applied in the upcoming case to render marriage, like discrimination protection, a basic entitlement, rather than a “special right,” for all Americans including gays. Like discrimination protection, that basic entitlement then could not be rescinded without violating the rights of gay couples to equal protection under the law.
As I mentioned earlier, the Court is set to decide not whether gays should be allowed to marry, but whether the right for gays to marry is in our Constitution. Those are two very different questions and the distinction is important: The latter question is for the Court; the former question is for the people.
There is a vibrant political debate in this country regarding whether there truly exists a benefit to promoting exclusively traditional marriage. Do we want that debate within the democratic marketplace of ideas or stifled by a 5 to 4 Supreme Court decision? Consider that since the right to vote was democratically established for women, it has remained unquestioned. Contrast that with the right to abortion, in which a 5 to 4 decision interjected the Court into what was then, and remains today, a vibrant democratic debate. America has yet to resolve the issue of abortion because finality comes not from the Court, but from the democratic process.
The American people resist judgments rendered by the Supreme Court, sitting up high, which affect the fundamental institutions of our society. The polling evidence is clear: Younger Americans favor gay marriage far more than their parents do. Allowing the gay movement to continue to gain political traction is a better course than risking a social backlash to Supreme Court overreach. The important question for gay rights advocates ought not to be what affords gay Americans superficial recognition the soonest, but rather, what foundation will best secure gay rights for good. The democratic process, not the Supreme Court, is the only path that can ensure the legitimacy of full gay equality as a part of America’s identity.
Justin DiGennaro is a first-year law student at Cornell Law School. He may be reached at firstname.lastname@example.org. Barely Legal appears alternate Fridays this semester.