Symposium: Sometimes it takes unelected Justices, not the political process, to give Americans the law they really want

Steve Sanders teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law.  He was co-counsel on an amicus brief in support of the petitioners in Obergefell v. Hodges.

A few days before the April oral arguments in Obergefell, I represented the pro-marriage-equality side (along with Robbie Kaplan) in a debate sponsored by the Alliance Defending Freedom.  To my surprise, the social conservative advocates on the other side avoided their usual arguments about natural law and the conjugal theory of marital unions.  Rather, they professed to celebrate pluralism and the diversity of views on gay marriage. 

“There are good arguments on both sides of this debate,” said Heritage Foundation scholar (and my co-blogger in this symposium) Ryan Anderson.  In much the same vein as Chief Justice John Roberts’s dissent in Friday’s Obergefell decision, Anderson insisted, “This isn’t a debate about what marriage is, it’s a debate about who gets to decide what marriage is.”  And so, he said, “all of these voices, all of these arguments should be heard, considered, and reflected upon, and then we the people should vote.”

In response, I asked Anderson if he would he would be willing to set aside the remaining state anti-gay marriage laws – most of which were passed amid campaigns of fear, demagoguery, and partisan politics – and submit the question to a truly representative national referendum.  It would not be one of those low-turnout elections where only the most ideologically committed citizens actually get engaged.  Rather, I proposed we take a snapshot of how Americans judge the question at this moment, as documented by copious scientifically reliable measures of public attitudes.

Tellingly, but not surprisingly, my challenge went unanswered.

The opponents of marriage equality can read polls as well as anyone else.  They know the arguments on both sides have already been “heard, considered, and reflected upon,” and that their side has lost.  A truly representative national referendum – unpolluted by absurd TV ads about “gathering storms” or red herrings about threats to children or religious liberty – was actually the last thing they would want.  A solid majority of Americans supports same-sex marriage, no matter how you ask the question, and no one imagines that the arc of history on this matter will change course.

And so, marriage equality opponents are left to fall back on grievances about judges veering outside their lane and drawing on their own preferences and gauzy understandings of constitutional rights to impose marriage equality by fiat.  Indeed, I suspect we are about to witness an eruption of short-lived but intense anti-court venom and demagoguery, unfortunately stoked by the judicial self-loathing of some of today’s dissenting Justices.

The Chief Justice’s lead dissenting opinion offers a storybook tale that is, by now, familiar: marriage equality litigation has been about unelected judges removing a sensitive social issue “from the realm of democratic decision” and “shutting down the political process on an issue of profound public significance.”  We are told, sanctimoniously, that gay marriage supporters have been denied “the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause … just when the winds of change were freshening at their backs.”

These observations form the core of perhaps the most modulated and serious argument against today’s decision.  But they tell a fanciful, incomplete, and misleading story.

First, a respectful reminder to the Chief: gay marriage advocates have already “persuad[ed] their fellow citizens of the justice of their cause,” as public opinion analysts have exhaustively documented.  So, why shouldn’t gays, lesbians, and their supporters have been patient and waited for the ordinary lawmaking process to catch up?  Because gay marriage opponents intended by design to insulate their laws from the effects of such social and cultural change.

Almost all the laws against gay marriage – including the four before the Court in Obergefell – came in the form of state constitutional amendments, and this fact is critical to understanding why Friday’s decision was necessary and defensible.  Their proponents vowed that, unlike ordinary laws, these amendments would freeze the definition of marriage in place for all time.  In other words, the amendments were intended to permanently disadvantage gays and lesbians; to shut down the debate over marriage equality just as it was getting off the ground in the late 1990s and early 2000s, and to insulate the question from future reconsideration through the ordinary legislative process.

As I have argued, heightened federal judicial attention is warranted under the Equal Protection Clause when a majority not only imposes a disadvantage on a minority, but also rigs the political process to prevent the matter from being reconsidered by later majorities in the light of better evidence or the evolution of public attitudes.  The Chief Justice observed that courts “do not have the flexibility of legislatures” to consider the wisdom of public policy or take all views into account.  But thanks to the state constitutional amendments, no legislature in any remaining anti-marriage equality state actually possessed such “flexibility” today.  Moreover, for all the talk among gay marriage opponents about the virtues of “going slow” and “proceeding with caution,” what exactly were political leaders in the remaining anti-equality states doing, other than digging in their heels against the nationwide tide?  Nothing.

Federal courts may be “blunt instruments when it comes to creating rights,” as the Chief Justice observed.  But the more relevant point is that state constitutional amendments were blunt instruments for taking away rights.  Such abuse of the political process demanded correction by our constitutional court.  If gay marriage supporters in Kentucky, Michigan, Ohio, or Tennessee had managed to persuade a majority of their elected legislators in favor of marriage equality, nothing would have happened.  Only a series of long, difficult, expensive campaigns to repeal the marriage amendments in each state could have changed things.  And that would have been too extraordinary and unfair a burden to impose on a minority group that was simply seeking to be treated like everyone else.

In his celebrated work Democracy and Distrust, the late John Hart Ely argued that judicial intervention is most democratically legitimate where the public’s current will is being thwarted because the channels of political change have been distorted or impeded – as they were in most states on the question of same-sex marriage.  Obergefell is broadly consistent with that theory: it took a group of unelected Justices to give us an outcome that a majority of Americans today actually wanted.

The point is not that we should make law by opinion poll.  The point is that, under our Constitution, we expect courts to step in and act when a minority group is being denied a fundamental right based on the transient passions and discredited motives of a political majority.  In most states, the political majority that denied marriage to gays and lesbians over the past two decades has now evaporated.  Yet the products of those campaigns continued to impose real harms and likely would have continued to do so for years to come.

The Chief Justice is entitled to his homilies about the democratic process and honest victories.  But as a matter of Fourteenth Amendment jurisprudence, there is nothing at all remarkable about this principle: serious harm and stigma imposed by ill-considered laws should not be allowed to linger after the justifications for those laws have been not only debunked, but have been decisively abandoned by most of the citizens who once favored them.