Commentary: The Supreme Court and marriage for same-sex couples — Part II

As part of our expanded coverage of this month’s oral arguments in the challenges to state bans on same-sex marriage, we are pleased to present this post by Michael Klarman on the history of the same-sex marriage movement and, more broadly, on how constitutional law evolves in the United States.

With support for gay marriage continuing to grow, in 2008 high courts in California and Connecticut ruled in its favor. However, the California decision was quickly overturned by Proposition 8, which passed by a margin of about five percentage points.

Six months after this bitter defeat, same-sex marriage took an enormous leap forward. Within a few weeks in the spring of 2009, the Iowa Supreme Court and three legislatures in New England – those of Vermont, New Hampshire, and Maine – embraced a right to same-sex marriage.

But efforts to legalize same-sex marriage encountered additional roadblocks soon thereafter. In Maine, voters vetoed the same-sex marriage law in November 2009 by roughly fifty-three to forty-seven percent. In Iowa, where a Democratic-controlled state legislature refused to permit a referendum on a state marriage amendment, voters in 2010 recalled three justices whose retention elections were converted into a virtual referendum on same-sex marriage. These were the first justices defeated for retention in the state’s fifty-year history of retention elections.

Yet in other states, same-sex marriage leapt forward. In 2011 the New York legislature enacted it. Early in 2012, legislatures in Washington, Maryland, and New Jersey passed same-sex marriage bills, though Governor Chris Christie vetoed the last of these.

Within days of a North Carolina referendum amending the state constitution to bar same-sex marriage in May 2012, President Barack Obama, after years of “evolving” on the issue, finally embraced a right to same-sex marriage. The Democratic National Convention that summer offered rousing endorsements of that right, and most Democratic senators announced support for it. On the same day in November that President Obama won reelection, voters in Washington, Maine, and Maryland approved same-sex marriage by referendum – the first time any state’s voters had ever done so. In a fourth state, Minnesota, a majority of voters rejected a proposed constitutional amendment to bar same-sex marriage – only the second time that any state’s voters had ever done so. In Iowa that day, voters retained a justice of the state supreme court who had voted in favor of same-sex marriage.

In January 2013 President Obama strongly endorsed marriage equality in his second inaugural address. Associating the struggle for gay equality with that for racial and gender equality by conjoining Stonewall with Selma and Seneca Falls, the president proclaimed that “[o]ur journey is not complete until our gay brothers and sisters are treated like anyone else under the law—for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

In the spring of 2013, legislatures in Minnesota, Rhode Island, and Delaware enacted same-sex marriage. Many Republicans also were beginning to shift their positions on the issue. In the run-up to the oral argument in the Supreme Court of cases challenging the constitutionality of the Defense of Marriage Act and California’s Proposition 8, three Republican senators endorsed same-sex marriage. More than one hundred prominent Republican politicians and party leaders, including the managers of the last two Republican presidential campaigns and a former chairman of the Republican National Committee, signed a Supreme Court brief supporting a right to same-sex marriage. Such statements represented an extraordinary shift from 2004, when Republicans almost uniformly denounced same-sex marriage and used the issue to considerable political advantage.

On June 26, 2013, the Supreme Court in United States v. Windsor, by a vote of five to four, invalidated Section 3 of DOMA, which defined marriage as the union of a man and a woman for federal law purposes, such as allocating Social Security survivors’ benefits or determining the immigration status of the spouse of a U.S. citizen. Under DOMA, the federal government declined to recognize same-sex marriages lawfully performed in the states.

Justice Kennedy’s majority opinion in Windsor emphasized that the federal government has traditionally deferred to state definitions of marriage. Yet, in the end, the opinion invalidated Section 3 of DOMA not on federalism grounds but because Congress’s motive for enacting it was to disparage and demean gays and lesbians.

The same day as Windsor, the Court in Hollingsworth v. Perry dismissed an appeal from a ruling by the U.S. Court of Appeals for the Ninth Circuit invalidating California’s Proposition 8. In an opinion by Chief Justice Roberts – speaking for an ideologically mixed group of himself and Justices Scalia, Ginsburg, Breyer, and Kagan – the Court dismissed the appeal on the ground that the official sponsors of Proposition 8, who had intervened at trial to defend the initiative after state elected officials had declined to do so, lacked standing to prosecute the appeal of the district court’s decision invalidating the measure.

Most commentators agreed that the dissent had the better of the standing argument, which suggests that the Justices in the majority had decided to “duck” the question of whether state bans on gay marriage were constitutional. The most plausible explanation for their doing so is that they worried that a ruling in favor of same-sex marriage would have ignited significant political backlash. Two members of the Windsor majority – Justices Kennedy and Sotomayor – indicated at the Hollingsworth oral argument that they doubted whether certiorari should have been granted in that case, which would require the Court to enter “uncharted waters” at a time when the states were busily “experiment[ing]” with the issue. A third member of the Windsor majority, Justice Ginsburg, has repeatedly stated that the Court erred in Roe v. Wade by intervening too quickly and too aggressively on the abortion issue, thereby preempting the political process.

After Windsor and Hollingsworth, the issue of same-sex marriage reverted to the states. At the time of the decisions, thirteen states and the District of Columbia recognized same-sex marriage. Within a few months, a state court ruling made New Jersey the fourteenth state to do so. In November 2013, legislatures in Hawaii and Illinois also enacted same-sex marriage.

The Supreme Court decisions also unleashed a wave of litigation challenging state bans on same-sex marriage. The Windsor decision provided ammunition to both sides in these lawsuits. Opponents of same-sex marriage emphasized the federalism language in Justice Kennedy’s opinion, which implied that states could continue to decide for themselves how to regulate marriage. By contrast, supporters of same-sex marriage cited Kennedy’s language emphasizing that same-sex couples were entitled not to be demeaned or disparaged and the interests of their children demanded protection.

Because of Windsor’s (intentional) ambiguity, one might have predicted that lower court judges would resolve subsequent challenges to state bans on gay marriage in accordance with their political ideologies, just as the Supreme Court Justices had done in Windsor. But that is not what happened. Beginning with a decision by the federal district court in Utah late in 2013, more than two dozen federal courts ruled that the Constitution protects a right to same-sex marriage, and only a couple of courts ruled the other way. As a result of these decisions, same-sex marriages are taking place today in roughly three-quarters of the states.

The future of same-sex marriage seems easy to predict – regardless of what the Supreme Court does this Term. Public support for same-sex marriage increased at the rate of about one percent annually from approximately the early 1990s to 2004 and at a rate closer to two percent annually since then. According to one poll, the percentage of Americans supporting same-sex marriage almost precisely doubled between 1996 and 2013 – from twenty-seven percent to fifty-five percent. Sophisticated models of public opinion predict that in less than a decade, even in Mississippi a majority of citizens will favor same-sex marriage.

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Three lessons emerge from this brief history of same-sex marriage litigation in the United States. First, the evolution of constitutional law has more to do with changing social and political mores than with traditional sources of constitutional law such as text, original understanding, and precedent. Same-sex marriage has advanced from an absurd constitutional argument to a compelling one – at least in the mind of five Justices – because public attitudes regarding sexual orientation have been transformed over the last half-century.

To a greater extent than most people probably are aware, other landmark Court rulings on issues of social reform were similarly inconceivable only a decade or two before they happened.  Twenty years before Brown v. Board of Education, a Supreme Court ruling invalidating racial segregation in public schools would have been virtually unthinkable. In the 1930s, the NAACP, which brought only constitutional challenges it considered likely to prevail, was contesting inequalities in teacher pay and in higher education, rather than grade school segregation, which seemed so solidly established as a matter of social practice and legal precedent as to be impregnable. Only the transformative effect of World War II on American racial attitudes and practices enabled the Court to decide Brown as it did.

Similarly, constitutional challenges to the death penalty and abortion restrictions were virtually inconceivable only a decade before the Court vindicated them in the early 1970s. According to one leading scholar of capital punishment, ten years before Furman v Georgia (1972), most commentators thought that the constitutionality of the death penalty was so obvious as to be “scarcely worth discussion.” The author of the leading study on the Court’s sexual privacy litigation has observed that a constitutional right to abortion was “unimagined” less than a decade before the Court decided Roe v. Wade (1973).

Second, Court decisions on issues of social reform that advance far beyond public opinion often generate potent political backlashes. Brown, Roe v. Wade, and Furman v. Georgia all had such an effect. In 1993, when the Hawaii Supreme Court ruled tentatively in favor of same-sex marriage, Americans opposed that social reform by a margin of at least three to one. When the Massachusetts Supreme Court ruled squarely in favor of same-sex marriage in 2003, the country was still opposed by roughly two to one. Thus, both decisions generated significant political backlash – the former leading directly to the enactment of the Defense of Marriage Act in 1996 and the latter to the passage of roughly twenty-five state constitutional amendments barring same-sex marriage.

Third, the factors that predict political backlash – which include public opinion on the underlying issue, the relative intensity of preference on the two sides of the issue, and the ease with which a particular Court ruling can be circumvented or defied – suggest that a Supreme Court ruling in favor of a constitutional right to same-sex marriage in 2015 will produce only minimal political backlash.

Polls show that fifty-five to sixty percent of Americans support same-sex marriage today—perhaps triple the percentage of twenty-five years ago. Moreover, as recently as ten years ago, opponents of same-sex marriage had much more intense feelings on the issue than did supporters. According to polls taken then, only six percent of same-sex-marriage supporters said they would be unwilling to support a political candidate with whom they disagreed on the issue, while thirty-four percent of opponents said they were willing to make same-sex marriage a voting issue. Among evangelical Christians, that number rose to fifty-five percent. That large disparity in intensity of preference between the two sides of the same-sex marriage issue no longer exists today.

Perhaps more importantly, it is hard to imagine how the coming of same-sex marriage will affect the lives of opponents as directly and powerfully as critics of Brown and Roe believed those rulings affected theirs. For white southerners committed to the preservation of white supremacy in the mid-1950s, forced integration of their children with African Americans in grade schools was the end of the world as they knew it. Similarly, opponents of abortion regard it as murder; that critics of Roe are intensely committed to resisting its implementation and ultimately to overturning it is thus hardly surprising.

What is the analogous harm that same-sex marriage would inflict on its opponents? Concededly, expanding marriage to include same-sex couples might eventually change the meaning of marriage for religious fundamentalists who currently understand it as an institution created by God to enable a man and a woman to propagate the species. But that is an abstract and long-term effect. It is hard to see how allowing the same-sex partners down the street who are already living together to get married will have a direct impact on opponents of same-sex marriage that is even remotely analogous to the effects that Brown and Roe had on opponents of those decisions.

A final factor relevant to predicting backlash is the ease with which a Court decision can be circumvented or defied. Prospective opponents are unlikely to rally against a ruling when doing so appears fruitless. Brown was easy to evade because, while it barred states from segregating students by race, it left the placement of pupils primarily in the hands of local education officials, who quickly devised schemes that ostensibly eschewed racial considerations but nonetheless managed to leave the schools thoroughly segregated by race. For the better part of a decade after Brown, virtually no school desegregation took place. Similarly, abortion opponents have whittled away at the right recognized in Roe by devising seemingly endless regulations of abortion clinics that, while ostensibly designed to protect women’s health, actually serve the purpose and effect of making abortions more expensive and burdensome to obtain.

By contrast, circumventing a Supreme Court ruling in favor of same-sex marriage will prove nearly impossible. The public officials charged with issuing marriage licenses have no discretion over granting them to couples who satisfy the legal criteria for obtaining them. If those officials choose for religious reasons to resign rather than grant marriage licenses to same-sex couples, they will simply be replaced with other officials willing to follow the law of the land. If they choose to defy the Court rather than resigning, only the support of elected officials could make that resistance effective. Can one really imagine state governors defying a same-sex-marriage ruling in a manner analogous to southern governors’ standing in the schoolhouse door to block desegregation a half century ago? (All bets are off as to how the chief justice of Alabama’s supreme court will respond to such a ruling.)

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In June 2015 the Supreme Court will likely rule that the Constitution requires that same-sex couples be admitted to the institution of marriage. In so doing, the Court will have given – as it usually does – the majority of Americans the Constitution that they want. The ruling will be widely hailed as the Brown v. Board of Education of the gay rights movement. Yet, as with Brown, the Court will be reflecting public opinion more than it shaped it. Also as with Brown, the Court will be rendering a decision that would have been nearly inconceivable only a couple of decades before it happened.

Michael Klarman is a professor at Harvard Law School and author of From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (2012).