Marriage Equality and the Role of the Court

In 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that lesbians and gay men possess a constitutional right to have sexual relationships without the threat of criminal penalty. At that point, only Texas and twelve other states maintained anti-sodomy laws. Now, ten years later, the Court is considering the constitutionality of state and federal denials of marriage recognition to same-sex couples. This week the Court is hearing arguments in two key cases: Hollingsworth v. Perry, the challenge to California’s Proposition 8, which eliminated same-sex couples’ right to marry; and United States v. Windsor, the challenge to Section 3 of the Defense of Marriage Act (DOMA), which denies federal recognition to same-sex couples’ valid state law marriages.

Much has happened in the decade since Lawrence. The country has witnessed not merely significant legal change, but also profound political and cultural change on the question of sexual orientation equality and, more specifically, marriage recognition. Those defending laws that deny marriage to same-sex couples realize that they are swimming against the tide. Accordingly, they increasingly deemphasize the substantive stakes and instead highlight institutional
arguments about the Court’s role. The Justices, they argue, should stay their hand in order to allow the political and cultural debate over marriage to continue.

In its final brief to the Court, the Bipartisan Legal Advisory Group (BLAG) — the Congressional body defending DOMA — concedes that “[t]he political process is in the midst of dealing with this issue, with new developments seemingly every week.” Therefore, BLAG argues, the Court “should decline the invitation to cut this vital debate short . . . and [instead] permit the citizens of this country to continue participating in working through this important issue.” In a similar vein, the proponents of Proposition 8 admit that “the political case for redefining marriage has resonated with growing numbers of Americans in recent years, and has carried the day in several States.” And, they continue, “whether marriage should be redefined is for the People to decide,”
not the Court. In essence, it would be undemocratic for the Court to intervene and settle the question, even though the country clearly appears to be moving in one direction.

Yet a decision by the Court in favor of marriage equality would at this point be consistent with — rather than antithetical to — democratic principles because of the exact developments that BLAG and the Proposition 8 proponents cite. The issue has been percolating in the courts as well as in legislatures around the country for many years. While few states initially followed Massachusetts’ lead after its state supreme court ruled in favor of marriage equality in 2003, more recent activity, particularly since 2008, has signaled growing support for marriage equality across governmental branches and at both the state and federal levels.

The Obama Administration has refused to defend DOMA and has made a powerful case that the law is unconstitutional. A growing number of political actors — including many prominent Republicans — have expressed support for the administration’s position and have voiced more general support for marriage equality. Of course, efforts to deny recognition to same-sex couples persist, with North Carolina the most recent state to pass a constitutional amendment.

But activity in favor of marriage equality clearly has much greater momentum. Public opinion polls reveal record levels of support, and younger generations favor the cause at much higher rates than their older counterparts. This past November that shifting public opinion translated into results at the ballot box. After a string of defeats in state initiative fights, marriage equality advocates recorded four groundbreaking victories. Maine voters passed marriage through referendum, Washington and Maryland voters affirmed their state legislatures’ marriage equality laws, and Minnesota voters rejected a constitutional amendment barring same-sex marriage. It is clear that while court-based battles drove much of the early change, more recent advances have come through state legislative work and ballot campaigns.

Given these profound changes that have occurred before the marriage cases arrived at the Court,a favorable intervention by the Justices at this point would — instead of squelching dialogue — merely affirm and support the emerging consensus at which the country is quickly arriving. Of course, there are still large segments of the population opposed to marriage equality and a majority of states maintain constitutional amendments or statutes barring same-sex marriage. But the Court may account for this unique moment in time, in which divisions persist yet the ultimate outcome appears increasingly inevitable. On both DOMA and Proposition 8, the Court may rule in ways that assist — rather than authoritatively end — the ongoing political and cultural struggle.

First, on the question of DOMA, if the Court strikes down Section 3, the federal government would begin to recognize same-sex couples’ marriages. Such a ruling would simply restore the normal rule: In matters of marriage, the federal government defers to states and does not set its own distinct rules on marriage eligibility. Moreover, such a ruling would not permit same-sex couples to marry in states that have not allowed such marriages. Couples in Texas, for instance, would be relatively unaffected by a ruling striking down DOMA. Couples in Massachusetts, where support for marriage equality is robust, would begin to enjoy federal recognition of their marriages.

Next, a ruling on Proposition 8 could strike a powerful, yet limited, blow in favor of marriage equality. The Court could rule that the proponents lack standing to appeal, which would leave Judge Vaughn Walker’s district court opinion as the decisive decision in the case. Same-sex couples in California would have their right to marry restored, and other states would continue to move forward on their own. A similar result might occur if the Court agrees with the Ninth Circuit Court of Appeals, which found decisive the fact that — unlike any other state — California allowed same-sex couples to marry before withdrawing that right. California would begin to issue marriage licenses to same-sex couples, but Texas, for instance, could continue to refuse.

Even if the Court were to rule in favor of same-sex marriage in a broader way, it could do so without invalidating all state marriage bans. The Court could conclude that states cannot grant same-sex couples all of the state law rights and benefits of marriage under the rubric of a
nonmarital designation — civil union and domestic partnership. The Justices might decide that there is simply no legitimate justification for withholding the label “marriage” when the state otherwise treats same-sex couples like their different-sex counterparts. With this decision, laws in states that have recognized same-sex relationships would fall. States like New Jersey and Hawaii would begin to allow same-sex couples to marry, but once again Texas — which denies to
same-sex couples the broad panoply of rights associated with marriage — could maintain its law.

How, then, would marriage equality arrive in every state across the country if the Court does not order it this term? How, in other words, would same-sex couples in Texas obtain the right to marry? After the Supreme Court’s rulings in Perry and Windsor, states would continue to
advance the issue legislatively and at the ballot box. Colorado, Rhode Island, and Illinois, for instance, are currently important sites of legislative activity. Courts, of course, would also continue to weigh in. In fact, same-sex couples recently filed a lawsuit in New Mexico, after key political actors argued that same-sex couples are not barred from marriage under state law. And federal litigation continues to move forward, with important cases challenging the nonmarital
recognition regimes in Nevada and Hawaii.

At some point, a case will make its way to the Supreme Court, and the Court will weigh in again. That Supreme Court decision may look a lot like Lawrence, the landmark 2003 ruling. Lawrence brought outlier states into alignment with the rest of the country, telling the thirteen
states that criminalized same-sex sex — mostly concentrated in more conservative regions — that their laws were unconstitutional. Just as the Court brought Texas into line with the country’s clear majority position then, it may ultimately do so with marriage.

Douglas NeJaime is Associate Professor of Law at Loyola Law School in Los Angeles.

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