As Prop 8 Heads to Supreme Court, The Constitution Alone Won't Guarantee Marriage Equality

The Ninth Circuit Court of Appeals has just struck down California’s “Proposition 8” same-sex marriage ban. The next stop for the case of Perry v. Schwarzenegger is the Supreme Court, if it decides to hear the case. The right outcome in principle would be for the Court to strike down the exclusion of same-sex couples from the marriage franchise as violations of the Constitution. Refusing same-sex couples legal recognition denies them the “equal protection of the laws” guaranteed them by the Fourteenth Amendment. It discriminates against homosexuals as a class based on a personal trait that they do not choose and cannot change. However, a judicial ruling to that effect will not be enough to secure marriage equality.

The Bill of Rights is a counter-majoritarian instrument, preventing democratic majorities from riding roughshod over unpopular minorities. This is entirely proper; one should never have to beseech one’s fellow citizens to respect one’s fundamental rights. However, on a nationwide level and on such a hotly contested issue, constitutional litigation alone probably will not work. In a democratic society, not even the best-written constitutions or the most vigilant jurists are enough to protect vulnerable minorities from the tyranny of hostile majorities.

What happened in California in 2008 is instructive: the state supreme court’s grant of marriage equality was constitutionally thwarted by a narrow popular majority. A similar backlash could occur at the national level, where gay marriage is even more controversial. Congress and the state legislatures could amend the Constitution to repeal any judicial ruling mandating marriage equality. While the odds are against the success of any such venture, it might not go down to defeat like past efforts to define marriage in the Constitution.

A Supreme Court ruling imposing same-sex marriage on the whole country all at once would instantly breathe new life and vigor into the opposition to it. A constitutional amendment to define marriage as a union between one man and one woman would probably fail. However, a narrower amendment, one aimed at repealing the Court’s decision while freeing the states to set their own policies, would be more likely to succeed. It would appeal not only to Americans who are staunchly opposed to same-sex marriage, but also to those who dislike the idea of a judicial resolution of the issue. A great many Americans will recoil from what they will see as the forcible redefinition of marriage for the whole country by a handful of unelected judges.

The Supreme Court Justices themselves probably know this, which is why they may not ultimately rule to require marriage equality at all. Even if they do, that will not settle the matter, any more than Brown v. Board of Education instantly brought about racial equality in America or Roe v. Wade ended the abortion controversy. It would be the beginning, not the end, of a pitched political battle across the nation — a struggle for the hearts and minds, not of judges, but of the American people.

The Constitution does not render even the most fundamental rights completely untouchable. Those rights cannot thrive without a popular culture of tolerance — one that only the citizens themselves can cultivate. We will not be able to perform a total judicial end run around most Americans’ conservative views of marriage. Gay-rights advocates in America have hearts and minds to win — not judges’, but their countrymen’s.

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