Last week, the Supreme Court heard arguments in two cases involving same-sex marriage. One of these cases, Hollingsworth v. Perry, asks the Court to decide whether the Equal Protection Clause of the Fourteenth Amendment prohibits Californians from amending their state constitution to define marriage as the union of a man and a woman. The case sets in opposition two interests many people consider to be extremely important: an interest in achieving widespread legal recognition for same-sex marriages and an interest in proetecting each state’s right to democratic self-governance. This is a familiar type of conflict; any time the Court opts to find a previously unrecognized constitutional right, part of the calculus must be a determination that the right in question is more important than the right of political majorities to make policy choices infringing on that right.
For the record, I think that the justices should resolve the conflict in favor of the rights of same-sex couples and find a nationwide constitutional right to same-sex marriage. Unfortunately, however, the questions posed at last Tuesday’s argument suggest the Court may not reach a decision on that question at all. Two possible alternative outcomes, both suggested at argument, are that the justices could (1) dismiss the case or (2) rule that the supporters of Proposition 8 lacked standing to appeal the district court’s order in the case. This is troubling because neither outcome seems likely to promote either of the vital interests involved. Each would, in its own way, harm the relevant interest in democratic state government without helping the cause of achieving recognition for same-sex marriages.
Let’s start with the first possibility. If the Court fails to reach a majority or dismisses the case, the seriously flawed decision of the Ninth Circuit would remain intact. That opinion did not reach the broader question of whether there is a nationwide constitutional right to same-sex marriage, but instead held that it was impermissible for California to take away the right to same-sex marriage after it had been granted.
It is important to understand what happened in California. The Supreme Court of California read the state constitution to guarantee a right to same-sex marriage and the people of California quickly amended their state constitution to counteract that decision. The Ninth Circuit opinion in Perry effectively ruled that, even though there was no requirement for the state to legalize same-sex marriage in the first place, once the justices on the Supreme Court of California made their interpretation, the citizens of California were thereby rendered helpless to ever change that interpretation — even by amending their constitution! If allowed to stand, this decision would diminish Californians’ right to democratic self-governance. It could also hinder rather than help the pursuit of legal recognition for same-sex marriages. Even if Proposition 8 were to be upheld, polling suggests a new initiative would be able to restore same-sex marriage to California in short order.
Meanwhile, the Ninth Circuit’s reasoning could have a chilling effect on other states. More than a few legislators or voters may be given pause by the understanding that their decision to legalize same-sex marriage, while not mandated, could be irreversibly final as a matter of law. Similarly, there could be perverse consequences as a result of the Ninth Circuit’s suggestion that Proposition 8’s definition of “marriage” was undermined by California’s decision to grant same-sex couples substantive rights like the ability to adopt. In the future, states that would otherwise extend such rights to same-sex couples might refuse to do even that out of fear that they will lose the right to reserve the label of “marriage” for opposite-sex couples.
A decision to vacate the Ninth Circuit decision because the defenders of Proposition 8 lack standing would similarly injure Californians’ democracy interest without being particularly helpful in the effort to achieve legal recognition for same-sex marriages. As the Supreme Court of California has said, and as Justice Kennedy noted during Tuesday’s oral argument, not allowing the proponents of an initiative to defend the state’s interest in the legitimacy of the resulting law when state officials refuse to do so would seriously undermine the initiative process and give state officials the power to thwart many ballot initiatives with which they personally disagree. And how much would this blow to the initiative process achieve for the effort to legalize same-sex marriage? The District Court order, finding a broad nationwide right to same-sex marriage, would remain intact. Unfortunately, a District Court order is generally only binding as to the parties in the case. There is some dispute over whether the particular order issued would prevent California officials from denying a marriage license to any same-sex couple or just the couples involved in the litigation. Suffice to say, the order would have no effect outside California – where a future ballot initiative will likely overturn Proposition 8 and moot the issue anyway. The damage to the initiative process, on the other hand, could be permanent.
Original Author: Thomas Curry