Symposium: No going back for this Bickelian Court

Today’s seven-fold denial of review by the U.S. Supreme Court in same-sex marriage cases is not as surprising as it may seem. This action (as opposed to in-action) is in line with what the Court appeared to be doing in June 2013. In United States v. Windsor and Hollingsworth v. Perry, the Court invalidated federal law’s limitation of marriage to opposite-sex couples and declined to decide the constitutionality of California’s ban on same-sex marriage.

In the wake of those 2013 decisions, I suggested in an academic article that the Court’s merits opinion in Windsor leaned in the direction of marriage equality but ultimately resisted domestication by disciplined legal analysis. It was neither the full-throated “equality” opinion Justice Scalia feared (with the implication that state bans on same-sex marriage were doomed), nor the straight-up “federalism” opinion Chief Justice Roberts hoped (with the implication that state bans were unaffected).

In seeking to understand why Justice Kennedy’s majority opinion seemed to preserve for itself a certain Delphic obscurity, I suggested that the opinion is best read as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not to end, a national conversation, and to nudge it in a certain direction. In such times, federalism reasoning and rhetoric – like declining to announce the level of scrutiny (see, for example, Windsor) and appearing to misapply the justiciability doctrines (see arguably, for example, Hollingsworth) – may be used as a way station toward a particular later resolution.

In American politics, federalism may serve a temporizing function – it may be invoked by politicians who do not want to take a decisive national stand on a divisive issue for the time being. In the years before the Civil War, for example, Senator Stephen Douglas pushed a “federalism” solution to the explosive constitutional problem of federal regulation of slavery in the territories (he called it popular sovereignty). More recently, President Obama framed the issue of same-sex marriage for the public in terms of respect for local decision-making before he framed it in terms of equal citizenship regardless of local decision-making.

So, too, in Windsor, the Court seemed to be using the analytical and rhetorical resources of federalism both as a Bickelian passive virtue and as an enabling device – as a way station toward an eventual declaration of marriage equality. Such an interpretation allows one to take the federalism language seriously in the majority opinion without embracing the Chief Justice’s “federalism” reading.

According to the Chief Justice’s interpretation, the Court inferred animus against gay people primarily or exclusively from Congress’s unusual interference with the traditional authority of the states to regulate marriage. The problem with this reading is that such a federalism analysis was logically unnecessary (see the Equal Protection and Due Process Clauses); unpersuasive on its own terms (the Court would not have inferred animus if Congress has defined “marriage” to include same-sex couples); and unlikely to decide any future cases (it is hard to think of another example in which federalism concerns render unconstitutional an otherwise permissible law that adversely affects equality or liberty interests). But like declining to announce the level of scrutiny in Windsor and declining to reach the merits in Hollingsworth, the federalism reasoning and rhetoric in Windsor did allow the Court to avoid requiring lower courts to invalidate all state bans on same-sex marriage at that time.

The Court avoided coercing courts to strike down state bans even as it encouraged them to do so. The Court encouraged them by emphasizing – repeatedly – that federal law’s discriminatory definition of marriage had the purpose, effect, and dominant social meaning of re-enforcing the inequality of same-sex couples and their children by excluding them from an institution that is not inherently unsuited to their inclusion. The Court also encouraged courts to invalidate state bans by celebrating the minority of states that were allowing same-sex couples to marry while ignoring the large majority of states that were prohibiting same sex-couples from marrying. For example, the Court commended New York – but not, say, North Carolina – for acting on “the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”

The Court’s encouragement continues with the certiorari denials this morning. It seems content for the time being to keep “persuading before it attempts to coerce,” as Alexander Bickel put it in 1962. The Justices obviously know that same-sex marriage will now expand to all of the states in the Fourth, Seventh, and Tenth Circuits. And the Court would have a lot of explaining to do if it subsequently were to uphold a state ban, thereby throwing into doubt the legal status of same-sex couples who will now marry in the wake of today’s action by the Court. (Whether it grants certiorari soon in another case likely will turn on whether the Sixth Circuit joins or resists the current consensus among federal courts of appeals.)

 

The Court, however, is unlikely to end up having a lot of explaining to do. As currently composed, the Court is very unlikely to uphold a state ban on same-sex marriage. If it was hard yesterday to deny that the writing is on the wall, it seems even harder to do so today.