Same-sex marriage symposium: Gay marriage, democracy, and judicial review

The following contribution to our same-sex marriage symposium comes from Steve Sanders, who teaches Constitutional Litigation, Sexuality and the Law, and Family Law at the University of Michigan Law School. 

Support for marriage equality continues growing dramatically and now commands a majority in many polls.  Public opinion experts routinely observe that they can’t remember another issue where change occurred so quickly.  Political scientist Kenneth Sherrill, who once quipped that gays were moving “from outlaws to in-laws,” wrote recently that “a consensus is emerging that the government should act to end the inequality and discrimination that LGBT people have traditionally faced.”

Such attitudinal change should portend political and legal change.  It should mean that winning equality state by state, through simple legislative majorities, is getting easier.  “Use the democratic process!” legal conservatives like to counsel.  “Don’t go running to the courts!”

But in most states, such change will not come as naturally as it should, due to barriers erected by opponents of equality.  On same-sex marriage, we have an example of what constitutional theorist John Hart Ely called “stoppages in the democratic process.”  The time has come for the federal courts to address this problem, and the Court this Term should provide some guidance on how to do so.

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Laws in about forty states still ban same-sex marriage.  The bigger problem is that most of these states – thirty-one – have embedded marriage discrimination in their constitutions, which cannot be changed by ordinary lawmaking.  Most of these “mini-DOMAs” were passed between 1998 and 2006, when gay marriage was still an unfamiliar, even threatening, idea.  Republicans exploited it as a potent wedge issue, and in less than ten years, social and religious conservatives had engineered passage of statutory or constitutional mini-DOMAs in most of the country.  The peak came in 2004, when thirteen bans were on the ballot and George Bush’s political svengali Karl Rove leveraged them to gin up GOP turnout.  Constitutional mini-DOMAs were intended to tie the hands of state judges who might strike down statutory or administrative bars to same-sex marriage, though many also outlaw civil unions.

Mini-DOMA proponents seized the moment to cement discrimination into their states’ fundamental law just before the sea change in public attitudes began.  In 2004, sixty percent of Americans opposed marriage equality; today that number is forty-three percent.  A recently leaked memo from a GOP pollster estimated support for marriage equality had been increasing at a rate of one percent up to 2009, and five percent since 2010.

Even more fascinating are the data state by state.  In most states that passed amendments since 1998, political scientist Greg Lewis estimates that public support for marriage equality has been climbing by more than two percent a year.  Six states with such bans had majorities in support of marriage equality as of 2011.  “If constitutional bans came up for votes in California, Colorado, and Oregon this year,” Lewis writes, “they would probably fail.  Nevada, Hawaii, Wisconsin, and Arizona would be toss-ups.”  Nate Silver came to similar conclusions last year, using demographic rather than polling data.

But here’s the rub: amending (or, as it were, re-amending) a state constitution is a long, arduous process often involving multiple or supermajority votes of a legislature or an intensive signature gathering effort, followed by a sophisticated and expensive ground campaign when the question goes to voters.

For what amounts to a question of family law affecting a small minority of the population, this is not how the political process is supposed to work.  Respected conservative Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit has condemned mini-DOMAs as a “tragedy” that offend the “American constitutional tradition” and “risk trivializing” constitutions by burdening them with “essentially statutory provisions.”  As Wilkinson wrote presciently in 2006:

[I]t is legislative bodies that broker compromises among opposing beliefs and zealous factions, and it is legislatures that adapt to changing public preferences and circumstances. It is impossible to predict what views electoral majorities may entertain five, ten, twenty, or fifty years hence on same-sex relations. It is the job of legislatures, not constitutions, to reflect evolving standards and to register change from whatever direction it may arrive.

Mini-DOMAs also offend due process and federalism, I have argued, by purporting to nullify the valid same-sex marriages of couples who migrate from states where such marriages are legal.

Even where constitutional provisions aren’t involved, opponents of equal marriage impose a shell game.  When courts grant marriage rights, opponents say it should be done by politicians.  When legislators grant marriage rights, opponents demand a veto (which Republican governors in Vermont and New Jersey provided) or seek to block the laws by popular referenda (which will be on ballots this fall in Maryland and Washington).

Despite favorable opinion trends, direct democracy, which Jeff Mateer lauds in his contribution to this symposium, is still a disaster for gay rights, and opponents know this.  As Politico noted recently, “Of the 33 times states have voted on gay marriage ballot measures since 1998, opponents of gay marriage have won 32 times.”  One reason is that opponents demonstrate such alacrity for misrepresentation and outright lying.  Some of it is also due to a skewed and under-informed electorate.  This spring’s ban in North Carolina won by sixty-one percent, but voter turnout was less than thirty-five percent.  A preelection poll had shown fifty-three-percent support for either marriage or civil unions, but only forty-six percent realized the amendment would ban both.

Political scientists Jeffrey Lax and Justin Phillips have found that on questions of gay rights, the preferences of “[p]owerful conservative religious interest groups” usually are “overrepresented,” resulting in policies that may be incongruent with general public attitudes.  Despite this bias, where an issue has high salience or public opinion is clear, legislators are more responsive to the public, they find.  In his Lawrence v. Texas dissent, Justice Scalia counseled gays to “promot[e] their agenda through normal democratic means” rather than constitutional lawsuits, because “[s]ocial perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.”  But constitutional mini-DOMAs have rigged the game by forcing gays to go above and beyond the normal lawmaking process.

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 In 1992, Coloradovoters adopted Amendment 2, which prohibited any form of non-discrimination protection for gays and lesbians.  The Court in Romer v. Evans struck it down.  Among the problems that troubled the Court was that Amendment 2 placed gays in a “solitary class” and imposed “a special disability”:  “They can obtain specific protection against discrimination only by enlisting the citizenry ofColorado to amend the state constitution…. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”

This passage echoed the Court’s Hunter/Seattle doctrine, which holds that equal protection is violated when a state places a group at a disadvantage by restructuring the political process so that its members “must appeal to a higher, more remote level of government to obtain legislative relief.”  Indeed, the Colorado Supreme Court had relied in part on Hunter/Seattle in first striking down Amendment 2.  But Justice Kennedy, for reasons unstated, did not pursue that line of analysis.

Romer’s meaning for marriage is a central issue in the cases the Court may consider this Term. The cert. questions are limited to the federal DOMA and the specific circumstances of California; none present the claim of a fundamental right to marry that would affect all states.  Still, opinions in these cases would send important signals about the Justices’ attitudes and approach toward gay marriage.  In considering these cases, the Justices should look down the road and give lower courts some of the guidance they will need for the inevitable future challenges to mini-DOMAs, bearing in mind that thirty-one states place gays in a “solitary class” by forcing them to amend a constitution on a subject governed in all other respects by statute.  At a minimum, the Court should affirm the First Circuit’s careful, context-sensitive application of rational basis in striking down the federal DOMA, and reject the House of Representatives’ spurious argument that the court “invented a new standard of equal protection.”

The pressing issue for federal courts is not about “redefining marriage.”  It is about eradicating barriers to equality, most of which were erected through flaws in the democratic process.  As recently as the early 1990s, most Americans reported intensely cold feelings toward homosexuals.  For a small minority with a long history of being unpopular, gays have gained stunning support from their fellow citizens.  Nonetheless, the denial of marriage in most states marks them as second-class citizens.  Through fear, animus, and raw political muscle-flexing during the heyday of mini-DOMAs, transient electoral majorities sought to make this status indelible and insulate it from legislative or state judicial review.

As Judge Michael Boudin wrote for the First Circuit, the Court has long recognized discrimination against “disadvantaged or unpopular” groups based on “thin, unsupported or impermissible” justifications as constitutionally repugnant.  This principle runs back more than seventy years to Footnote Four of Carolene Products: when majorities abuse their power to “curtail the operation of those political processes ordinarily to be relied upon to protect minorities,” the necessary solution is “searching judicial inquiry.”  That inquiry should begin this Term.