Same-sex marriage symposium: Certiorari and Perry

The following contribution to our same-sex marriage symposium comes from  Andrew Koppelman, John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University.  He has written many books and articles, including Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale U. Press 2006).

The Court would be wise to deny certiorari in Hollingsworth v. Perry, the California same-sex marriage case.  Unlike the challenge to the federal Defense of Marriage Act, which it can and probably will strike down without bringing same-sex marriage to any state that does not want it, this case would require the Court to settle the marriage issue for the entire country at a stroke.  If the recent health care reform case taught us anything, it was that Chief Justice Roberts does not want to expose the Court to that kind of heat.

The Ninth Circuit offered the Court a narrow disposition of the case by holding that California’s Proposition 8, which stripped same-sex couples of their right to have their unions called “marriages,” was unconstitutional because it reflected a bare desire to harm a politically unpopular group.  It held that “the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason.”  There may not be a right to same-sex marriage, but once that right is granted, it may not be taken away. This holding does not mandate recognition of same-sex marriage across the United States.  But it does mean that any state that recognizes same-sex marriage (at least within the jurisdiction of the Ninth Circuit) may not go back.

Perhaps an even narrower basis for affirmance is available.  But the way for the Supreme Court to stay out of this is, well, to stay out of it:  to deny certiorari, which means, to decline to use its entirely discretionary power to hear the case at all.

There are a lot of reasons for the Court to avoid this case.  Here is one that has been too little noticed: a puzzle at the boundaries of sex discrimination doctrine.

One argument that has been preserved for review by the plaintiffs is that discrimination against same-sex couples is explicit sex discrimination subject to intermediate scrutiny: Kristin Perry would be permitted to marry Sandra Stier if Perry were a man. (“Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex.”) Such a ruling would probably end all bars on same-sex marriage, unless this Court were to take the unwise step of reviving the discredited logic of Pace v. Alabama (1882), which held that racial classifications equally imposed on blacks and whites are not race discrimination.

The argument is unfamiliar but clear.  If Lucy is permitted to marry Fred, but Ricky may not marry Fred, then Ricky is being discriminated against on the basis of his sex.  The counterargument that has persuaded many courts is that, if lesbians and gay men are equally discriminated against, then there is no sex discrimination.  However, this counterargument is the same one that the Supreme Court rejected in Loving v. Virginia, the 1967 case in which it struck down laws against interracial marriage.  Virginia had defended its miscegenation law with the argument that, while it was true that blacks were forbidden to marry whites, whites were equally forbidden to marry blacks.  The Court could easily see the silliness of that argument.  If prohibited conduct is defined by reference to a characteristic, then the prohibition is not neutral with respect to that characteristic.

The sex discrimination argument has important implications for federal constitutional law, since the U.S. Supreme Court has held that classifications based on sex require an “exceedingly persuasive justification” in order to be upheld.  It thus implies presumptive invalidity for all laws that expressly discriminate against gay people and same-sex couples.

How could the Court avoid that result?  Only by limiting the holding of Loving, a case that is now an honored part of the canon.  That would lead to the nasty conclusion that perhaps some kinds of race discrimination aren’t so bad after all.  The Court doesn’t want to go there.

The sex discrimination argument for same-sex marriage will, I’m confident, eventually be part of American constitutional law.  But I’m also confident that the Court is in no hurry to make that happen.  On the other hand, the Court can see the direction in which public opinion is shifting on the issue, and the Justices understand that if they hold that there is no right to same-sex marriage, they are likely to be disgraced in history.  They have every reason to want the case to go away.