The following piece for our same-sex marriage symposium is by William Eskridge, the John A. Garver Professor of Jurisprudence at the Yale Law School. He is the author of The Case for Same-Sex Marriage (1996), and dozens of other books and articles arguing for the civil rights of sexual and gender minorities.
How ought the U.S. Supreme Court handle the appeal in Perry v. Schwarzenegger once the case is ripe for appeal? The Court ought to avoid any broad pronouncements on the merits of plaintiffs’ claim that denying marriage equality to lesbian and gay couples violates the Fourteenth Amendment. If the Court reaches the merits, the Justices ought to affirm the district court decision based upon Romer v. Evans (1996).
In 1956, political scientist Robert Dahl warned that pluralistic democracy cannot easily handle issues that both intensely and evenly divide the polity. Indeed, such issues threaten the viability of our system, because they polarize contending groups and engender politics-exiting bitterness among group members who are defeated. Examples of such high-stakes issues in our history are slavery, immigration, prohibition, apartheid, and abortion.
Add same-sex marriage as an issue that now divides the country both intensely and evenly—and is therefore an issue that ought not be resolved one way or the other until public preferences become more settled. This is a reason why the Defense of Marriage Act (1996) and the proposed Federal Marriage Amendment (2003-04) were unwise, for they sought, prematurely, to declare victory for supporters of traditional marriage before public opinion had settled firmly in their favor. It is also a reason why the Supreme Court ought not declare a national constitutional right supporting same-sex marriage, for that would, prematurely, declare victory for supporters of marriage equality before public opinion has settled in their favor.
As I wrote fifteen years ago, in The Case for Same-Sex Marriage (1996), the legal case for such a constitutional right is an excellent one. But the legal case for a constitutional right for different-race couples to marry was an excellent one in the wake of Brown v. Board of Education (1954)—but it took the Supreme Court half a generation to recognize such a right, in Loving v. Virginia (1967). In 1954, three-fifths of the states barred such marriages; by 1967, only southern states did so. Only after the stakes were lowered was it politically prudent for the Court to announce a national resolution.
What does this mean for a future Supreme Court appeal in Perry? I’d make three suggestions. First, as Alexander Bickel argued, the “passive virtues†are often the best. The Supreme Court ought to avoid a final judgment on the constitutionality of marriage law’s discrimination against lesbian and gay couples until the nation is substantially at rest on the issue. Admittedly, that moment is coming more rapidly than anyone predicted, but that moment has not yet arrived. The Court may deny review of any Ninth Circuit opinion in Perry, and it would be wise to exercise that discretion if the Ninth Circuit issues a narrow ruling. There are many state court decisions adjudicating the state constitutionality of the marriage exclusion; it is high time the federal courts debated the issue openly, and that federal court debate ought not be foreshortened by the Supreme Court.
Second, if the Supreme Court were to take Perry, it would be wise to limit the Court’s grant of review to a procedural issue, such as the constitutional standing of Proposition 8 supporters to appeal Judge Walker’s judgment, without the participation of the state and local officials who were the named defendants in the case. The Ninth Circuit has certified a couple of issues to the California Supreme Court that the federal judges believe may resolve the standing issue in favor of the Proposition 8 proponents. I have no firm views on the constitutional standing issue. On the one hand, the Supreme Court’s access-restricting precedents provide strong doctrinal support for the plaintiffs’ anti-standing arguments in this case, but Judge Reinhardt is wise to object that Proposition 8’s many supporters ought not be foreclosed from defending their hard-won electoral victory because of a legal technicality.
Third, if the Supreme Court were to take the Perry appeal and reach the merits, the Court ought to issue a narrow opinion that would not purport to settle the constitutional issue one way or the other. In other words, the Court ought to avoid the Scylla of Roe v. Wade (1973), which recognized too broad a constitutional right, and the Charybdis of Bowers v. Hardwick (1986), which broadly rejected any privacy protections for “homosexual sodomy.â€Â Both Supreme Court decisions were unwise in their breadth and, for that reason, raised the stakes of politically intense issues to the detriment of our pluralism.
There is a narrow alternative to the broad fundamental right to marry sought by the plaintiffs in Perry, and to Judge Walker’s more prudent view that the voters’ revocation of marriage equality violated the rational basis test. A narrower ruling on the merits would rest upon Romer v. Evans (1996), where the Court invalidated Colorado’s Amendment 2, an anti-gay state constitutional initiative, because it violated core equal protection precepts.
While there is legitimate debate about how broadly to read the Court’s opinion, Romer applies (at the very least) to cases whose facts are close to the Romer facts: (1) novel, ad hoc legal barriers erected by voter initiatives denying fundamental public rights to lesbians and gay men (2) cannot stand if tainted by a bare desire to lower the status of this minority (whether for reasons of anti-gay animus or religious morality) (3) rather than a rational connection to a neutral public interest.
Proposition 8 fits the facts of Romer snugly.  No state but California has recognized lesbian and gay couples’ right to civil marriage as “fundamental,†and then revoked that fundamental right through a popular initiative. The supporters of Proposition 8 openly defended their rights take-back as a pure status denigration. Thus, their ballot materials explained that the rights take-back was needed in order to (1) restore the discriminating feature of traditional marriage, (2) discipline “activist†judges who recognized fundamental rights for a disapproved minority, and (3) assure that schoolchildren would not be taught that gay marriage was entitled to the same civil respect accorded traditional marriage.
Finally, the briefs filed by the Proposition 8 proponents have been strikingly unable to tie the exclusion of same-sex couples to any neutral state interest. Their main argument, that discrimination against gays protects marriage against decline, is open scapegoating, namely, blaming a minority for problems created by the majority. Marriage has been in decline in many respects, but not because of lesbian and gay unions, which are more likely reinvigorate than kill that institution. (Massachusetts has seen marriage flourish since 2004, when that state recognized gay marriage.) Instead, the “decline†of marriage owes much to freedoms enjoyed by heterosexuals, like sexual cohabitation and no-fault divorce; yet none of the traditionalist “defenders†of marriage has lifted a finger to take away straight people’s rights in order to strengthen marital bonds and protect children against broken homes.
Are there not differences between Romer’s Amendment 2 and Perry’s Proposition 8?  Yes. But the big differences cut against the validity of Proposition 8. One difference is that Amendment 2 denied lesbians and gay men a range of legally enforceable rights and benefits, while Proposition 8 left lesbian and gay couples with the legal rights and duties associated with marriage but labeled “domestic partnerships.â€Â Thus, Amendment 2 denied gay people some legal rights, while Proposition 8 is completely symbolic. In one respect, the latter is a more serious equal protection concern: the proponents of Proposition 8 spent millions of dollars simply to deny lesbian and gay couples the symbolic equality associated with full (civil) marriage recognition. Certainly, no one would doubt the insult of allowing marriages only between same-race partners while affording different-race partners a parallel institution called “domestic partnerships.â€Â The deliberate insult is just as obvious here. Carving out a class of citizens from a core civil or political status is unprecedented in our constitutional system; it is highly suspect, and perhaps a per se constitutional violation, under Romer.
Another difference between Romer and Perry is that the record in the latter is replete with open appeals to sectarian morality, to anti-gay prejudice, and to the stereotype that “homosexuals†are predators “recruiting†“innocent children.â€Â The Romer Court inferred animus from the poor fit between the sweep of Amendment 2 and the “rational†purposes attributed to it; in this case, there is just as poor a fit—but the record in Perry is saturated with direct evidence of animus (anti-gay prejudice, stereotypes, and sectarian disapproval).
Like the Warren Court did in the different-race marriage cases, the Roberts Court should not be in a hurry to reach the constitutional merits of the same-sex marriage cases. If the Justices reach the merits, they should craft an opinion that decides the California appeal but goes no further. A Romer-based approach is the best the Court can do under those circumstances—and then watch as the state-by-state debate eventually runs out and a rough consensus emerges among younger Americans, who I believe will ultimately find same-sex marriage a constitutional no-brainer.
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