Gay Marriage: Why the Supreme Court Should and Likely Will Let the People Decide
By: Brian Woodward
The Supreme Court
Two and a half years ago, on Times Square Gossip, I praised the California judge who overturned a ban on same sex marriage as voted for and enumerated by Proposition 8. I also accurately predicted that the overturning of Proposition 8 would come before the Supreme Court. The oral arguments in Hollingsworth v. Perry (Proposition 8 case) have been presented and as usual it will likely take the Supreme Court a matter of months to come out with a decision. It will not be a sweeping victory for same-sex marriage. Although the court has proved to be at least somewhat unpredictable, given their unexpected ruling on the Affordable Care Act, they signaled quite clearly that they are not prepared to hand down a ruling with far reaching consequences.
Although many proponents of gay marriage (which now constitutes a majority of Americans) will be disappointed with anything less than nationwide legalization of same-sex marriage, the court would be justified in limiting their ruling to California only. Public opinion is moving very quickly in favor of gay marriage and the Supreme Court Justices aptly observed that it may be much more efficacious to allow this to play out on a state by state basis. Once a majority of states legalize the measure, it then would be the responsibility of the federal government to enforce it on a national level, forcing any states that refuse to adapt to recognize same-sex marriage.
Forty years ago a similar phenomenon of public opinion was stirring within our country. The citizenry was having a discussion on whether or not a woman had the right to do as she wished with her own body. Public sentiment was moving quickly towards a woman’s right to choose. However, the abortion debate got cut short. Instead of letting the issue resolve itself through the legislative or referendum process, the court, in their 1973 ruling in Roe vs. Wade, enforced the right to abortion nationwide. It resulted in a culture war that continues today polarizing the citizenry and separating Americans along pro-choice and pro-life lines.
Hollingsworth v. Perry dealt with the constitutionality of a decision by a California judge that overturned the results of a ballot initiative that resulted in a 52.3% majority of banning same-sex marriage in the state. The Supreme Court signaled concern that this was the appropriate time to take the case. Justice Sonia Sotomayor said at one point, “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?” Justice Alito added, “On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?”
The most likely outcomes of Perry vs. Hollingsworth are that the court will find that proponents of proposition 8 lack standing, justices will vote to remand the judgment for further consideration in light of the Defense of Marriage Act case (United States v. Windsor), or the court will fail to reach a majority. All of these would result in Proposition 8 being overturned but its effects would pertain to California only.
The standing issue, which seemed the most likely to acquire a majority vote, is required for adjudication and it requires that the defendants show distinctive personal injury. The justices had serious doubts whether the four defendants had anything further than a broad interest of the law being enforced simply because they voted for it. Whether personal injury, rather than a general grievance, was sustained seemed to be in serious question by members of the court. Supreme Court scholar and world renowned attorney Tom Goldstein said “There is only one question on which it seemed five Justices might agree: the judgment should be vacated because the petitioners lack standing. The Chief Justice and the four more liberal members of the Court indicated their sympathy for that position. If they vote that way, the Ninth Circuit’s decision striking down Proposition 8 will be vacated – wiped from the books – but U.S. District Judge Vaughn Walker’s judgment invalidating Proposition 8 would remain unaffected.”
There are likely four votes on each side of the issue should the court decide to rule on the merits of the case. The swing vote, Justice Anthony Kennedy, indicated that he would prefer that the court not rule on the merits of the case. Given the hesitancy to delve into what he called “uncharted waters”, it is hard to anticipate a verdict that has widespread implications for same-sex marriage.
The Obama Administration’s argument failed to persuade anyone. The only thing the high court seemed to agree unanimously on was that no one considered the Obama Administration’s stance on the issue convincing. The administration’s brief calls “for the nullification of the gay marriage bans now in place in California and the seven other states that forbid gay marriage while allowing civil unions.” Essentially this position asserts that for those states which allow civil unions they will be forced to grant full marriage. It takes no position on states that have no benefits for same-sex couples. Several Justices vehemently challenged the Solicitor General when he made the administration's argument before the court. Justice Sonia Sotomayor stated, "General, there is an irony in that, which is the states that do more have less rights." Chief Justice Roberts asked, “So it's got to happen right away in those states where same-sex couples have every legal right that married couples do -- But you can wait in states where they have fewer legal rights?"
Although such a ruling would benefit those couples in civil union states it would greatly hamper progress for those in states that have no benefits for same sex couples. It would then force states to decide between granting marriage to gay couples or granting nothing at all. While ideally marriage would be granted to these couples, it is undeniable that civil unions are a significant step forward, and that it is much easier to pass laws of this nature (as illustrated by the 8 states that have civil unions, but not marriage). This could result in hampering progress in certain states.
Many will argue that legalization must be done right now due to the suffering caused by failing to treat same-sex couples on equal footing as opposite-sex couples. There is merit to this argument due to the pain and suffering caused to those gay couples who are unable to enjoy the many benefits that marriage provides. However, it would be dangerous to force ultra-conservative states like Oklahoma, to enforce such statutes immediately. Such action, in states that are most opposed to gay marriage, would potentially insight further bigotry and hateful actions towards an already discriminated class.
The Supreme Court is not in the business of creating law. The democratic process should be used, when prudent, to accomplish needed changes to traditional laws. This is not the time to invoke “tyranny of the majority” because the majority, as revealed by public opinion, is on the side of the same-sex marriage. It will take time for public opinion to result in legislation that allows gay marriage nationwide, but at this point it is inevitable.
A CBS News Poll taken in late March found that 53% of Americans support marriage for same sex couples while 39% oppose it. These numbers were essentially inverted 5 years ago with 53% opposing and 40% supporting same-sex marriage. In the same poll, 33% of citizens that now support gay marriage admitted that they at one time held an opposite view.
A decision by the court at this time legalizing marriage for same-sex couples would have splintered effects. Although the immediate benefits that go with marriage would unquestionably help those couples, the civil unrest in areas of the country where opposition is highest would have substantial negative effects that could linger for decades to come. Progress takes time, and as demonstrated by the court’s past eagerness to enforce new norms on Americans, rushing into associated decisions can backfire.
The next ten years will likely result in gay marriage being legal in a majority of the states if not federally legalized. The role of the courts is to tread with caution when deciding such polarizing issues. When possible, the people should vote, or their representatives should pass legislation in concordance with their wishes to enact law.
Same-sex marriage is coming soon to the United States but rushing into a ruling made by nine unelected judges could increase and perpetuate the stigma associated with it. The best way to ensure widespread acceptance, eliminate animosity, and treat same-sex couples as equals is to let democracy run its course. It may not be perfect, but it is the best solution for our country and for the LGBT community.