Much to the surprise of Court watchers, the Supreme Court on Friday agreed to review two cases dealing centrally with the issue of same-sex marriage. The first case, United States v. Windsor, challenges the constitutionality of the Defense of Marriage Act (DOMA), a 1996 statue that defines marriage for federal purposes as only between one man and one woman. The second case, Hollingsworth v. Perry, deals with the constitutionality of California’s Proposition 8, a state constituional amendment that denies same-sex couples the right to marry.
While there was wide agreement among the so-called community of experts that the Court would review the DOMA case, Friday’s announcement that the Justices would also review the constitutionality of Prop 8 sent seismic shockwaves across the blogosphere. It was widely thought that the Court would eschew the core constituional issues of same-sex marriage for the narrow and less politically volatile questions presented in the DOMA case. But as SCOTUSblog’s Lyle Denniston notes:
It is obvious now why the Court took as much time as it did: the selection process must have been rather challenging, and the composition of the final orders equally so. The Court, one might say in summary, has agreed to take up virtually all of the key issues about same-sex marriage.
Why Pundits Misunderstand the Court
This stands in stark contrast to what many self-proclaimed experts nonchalantly predicted just a few days ago: that the Court is a conservative institution, extremely cautious and circumspect in throwing itself into the political fray on issues that may trigger a severe public backlash.
In an article published last year, I specifically rejected these arguments, noting that the American people and the Court stand ready to enact marriage equality. At the time, my position stood in direct opposition to prominent constitutional scholar William Eskridge, Professor at Yale Law School, who stated in a SCOTUSblog article that, “Because the country is not yet at rest on the issue of marriage equality, the Supreme Court ought to deny the petition for review in Perry.”
Similarly, just a couple of weeks ago, CNN’s noted Supreme Court commentator Jeffrey Toobin said, “I don’t believe the Court is ready to take the backlash” of legalizing same-sex marriage. He proceeded to opine that the Court would deny cert in the Prop 8 case. This failed prediction marks a second embarrassingly public failure for Toobin, who earlier this year emphatically argued that the Court would strike down the individual mandate in the Affordable Care Act, only to retract his statements in an post titled, “I got it wrong.” He should now consider writing a second installment: “I got it wrong, again!”
These failed predictions are not coincidental; rather, they are the offspring of a deeply flawed understanding of the Supreme Court’s institutional dynamics. Toobin, for one, has stubbornly argued that the Court is hyper-political, and that its Republican-appointed majority is deeply loyal to a politically conservative ideology. In his New York Times Best Seller, The Nine, he comments that, “one factor – and one factor alone – will determine the future of the Supreme Court: the outcomes of presidential elections.” Real life has disproven this rigid thesis time and again. The Court’s landmark decision in Brown v. Board of Education, for example, was written by a former Republican governor, Earl Warren, who was appointed to the Court by a Republican president, Dwight D. Eisenhower. More recently, in 2003, two Reagan-appointed Justices cast the deciding votes that overturned sodomy laws in this country and, this summer, it was Chief Justice John Roberts, a Bush appointee, who saved President Obama’s landmark healthcare law from total annihilation. It is clear, then, that justices are influenced by factors far more complex than the ideology of the president who appointed them to the Court.
The False Threat of Backlash
Another argument routinely employed to chide judicial action on the question of same-sex marriage deals with the threat of backlash. Some commentators have raised the specter that states might openly defy the Court’s mandate for marriage equality, something that might deal a critical blow to the judiciary’s institutional power. These fears are unfounded. First, it is worth noting that mass-scale defiance of a judicial ruling has not taken place in this country since the Court’s landmark ruling inBrown v. Board of Education.
Second, there is absolutely no reason to believe that a backlash against a pro-gay marriage ruling would be of the same magnitude as in Brown. Public opinion polls show rapidly increasing support for same-sex marriage across all demographic groups – recent Gallop Polls indicate national support for marriage equality stands at 50%. By contrast, when the Supreme Court legalized interracial marriages in Loving v. Virginia (1968), public support for interracial marriages stood at only 20%. Third, in the unlikely event that states do resist the Court’s ruling, hordes of federal troops stand ready to impose compliance where reason fails to persuade. If such drastic action becomes necessary, there is no better time than now, when the nation’s Commander-in-Chief is a man deeply sympathetic to marriage equality.
Lastly, the idea that a temporary backlash would cripple the power of the Supreme Court is extremely short-sided. Let it not be forgotten that the brightest star in the Court’s legal history,Brown v. Board, triggered the most intense backlash in recent history, but it was the Court’s courage to meet fear with principle that today’s living generation remembers. A pro-gay marriage decision prior to an absolute national consensus promises the Court similar gains in institutional power. It would help reinforce the romantic concept of the judiciary as an unyielding defender of minority rights. There is power in that image.
In-apt Analogies to Roe v. Wade
Another often-adduced reason why the Court should stay its hand on marriage equality has to do with Roe v. Wade. Thirty-nine years after it was decide, Roe continues to be intensively divisive and states continue to test the Court’s commitment to the abortion right with laws that persistently encroach further and further on a woman’s right to choose. Many liberal legal scholars blame this state of affairs on what they view as the Court’s “premature” action on the abortion issue. Law Professor William Eskridge, for example, suggests that the Court’s untimely and overly broad ruling in Roe “raised the political stakes to the detriment of our pluralism.” There is fear that a similarly untimely and overbroad ruling might retard the immense progress the LGBT movement has made in recent years.
The divisiveness of Roe, however, has nothing to do with the time or manner of the opinion. Brownitself was an equally prematurely decided opinion with equally tenuous legal arguments, yet it still claims a divine place in legal history. Instead, Roe’s continuing divisiveness has everything to do with the moral dilemma of abortion, a dilemma that is categorically distinct from those in gay or racial equality. At the core of the abortion issue is the seemingly irresolvable question of when life begins. There is nothing in human experience that can furnish a definitive answer to that moral question – so the debate persists.
But with racial and gay quality, the moral question was whether gay or black people are moral inferiors or social degenerates. As people of color and gays have taken up increasingly visible roles in life, old phobias have crumbled before the observable reality that these groups can serve as respectable contributing members of society. Such is not the case with abortion, where nothing in human experience can assuredly answer when life begins. For this reason, a pro-gay marriage ruling will follow the course of Brown and not of Roe. A telling indicator that this will be so is that, already, more people in this country support marriage equality (50%) than identify as prochoice (49%). In fact, since 1995, the number of people identifying as “pro-choice” has decreased by 7 percentage points, while the number of people identifying as “pro-life” has increased 12 percentage points. By stark contrast, since 1995, the percentage of people supporting same-sex marriage has increased by 23 percentage points, while the number of people opposing same-sex marriage has decreased by 20 percentage points.
Finally, some commentators fear there are not enough votes on the current Court to uphold marriage equality and that a contrary ruling might seriously stifle the progress of the LGBT movement. Kagan, Ginsburg, Breyer, and Sotomayor are sure votes for marriage equality. Anthony Kennedy, I believe, is another sure vote. Kennedy has personally penned the two major gay rights cases the Court has issued to date. His passionate appeal for the dignity of gay people in Lawrence v. Texas indicates his deep sympathy for marriage equality. There, he observed that, “when sexuality finds overt expression in intimate conduct with another person, that conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
As Justice Scalia angrily wrote in his dissent in Lawrence, “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned…this case does not involve the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.” In this way, Justice Kennedy clearly laid the groundwork for a future monumental ruling on gay marriage.
There is also strong evidence that Chief Justice John Roberts would also support marriage equality. In a 2005 article, the LA Times reported that Roberts “worked behind the scenes [pro bono] for gay rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling [Romer v. Evans] protecting people from discrimination because of their sexual orientation.” Additionally, Roberts displayed incredible independence of mind in the recent health care case, where he ruled against his conservative colleagues, and even against Justice Kennedy, in upholding Obamacare. As the Chief Justice, moreover, Roberts is particularly concerned with his Court’s legacy. He is a smart man. I doubt very much he will be on the wrong side of history.
In short, here are my bold predictions: I believe the Court will strike down DOMA by, at least, a 6-3 majority. Additionally, I predict a landmark marriage equality ruling in Perry penned by Justice Kennedy, 6-3, delivered on June 26, 2013–the 10-year anniversary of Lawrence v. Texas and the Court’s second to last day before its summer recess. Moreover, I predict a broad ruling, finding same-sex marriage a fundamental right protected by the liberty component of the 14th Amendment’s Due Process Clause. Come summer, I predict an ensuing wave of same-sex weddings across the country, just in time for national Pride celebrations.
This article originally appeared on HPROnline.com