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Up Front

Gay Marriage Hits the Supreme Court

Jonathan Rauch

Listening to the Supreme Court’s arguments on the big gay marriage case—which will decide if California, or for that matter any other state, can forbid same-sex marriage, as California’s Proposition 8 did in 2008—I was struck by the baldly political nature of the conversation.

“Baldly political” usually means something bad, such as unprincipled horsetrading. But in this case it means something good. The court just didn’t have enough clear law to decide the questions before it. So it had to do what the Supreme Court must do, and indeed should do, when law can’t settle the problem. It openly considered the political consequences of its decisions.

Gay marriage doesn’t fit any existing judicial template, except an old case from 1971, which the court rightly dismissed as obsolete. It doesn’t neatly fit civil-rights decisions overturning, for example, racial discrimination, because society has always (rightly or wrongly) viewed male+female as intrinsic to the nature of marriage in a way that white+white is not.  But it also doesn’t fit another branch of jurisprudence requiring the court to uphold any law that a legislature might conceivably believe is rational, because a simple “rational basis” review would open the door to tyranny of the majority against gays, which the court forbade in 1996.

So, to its credit, the court decided to look at the underlying politics. Three political arguments were before it:

1. Plaintiffs: Gay equality has come to be accepted as a civil right. That wasn’t true a few years ago, but now that it is true, the court should recognize that reality rather than continuing to hurt gay couples (and their kids).

2. Defendants: The debate about gay equality is ongoing, especially with regard to marriage. The country is still making up its mind. It’s premature for the Supreme Court to jump in and take the decision out of the political process.

3. The Obama administration: It depends. If a state is still debating gay equality, maybe it can ban gay marriage. But if it has already plumped for gay equality on every other front—as California had done with civil unions, gay adoption, and antidiscrimination protections—it cannot then justify withholding equality in marriage.

Each of these political arguments is problematic—not because they are political, but because all of them slice the baby in an uncomfortable direction. You could hear this clearly in the justices’ collective groping for answers they couldn’t find.

No. 1 seemed too broad. It implies that the court has no choice but to order gay marriage everywhere, right now, forever. Justice Kennedy, the likely swing vote and often gay-friendly in other contexts, sounded reluctant to go there. “You’re really asking…us to go into uncharted waters,” he said. Even Justice Sotomayor, presumed to be a liberal vote, had problems with the broad ruling, asking unhappily, “If you say that [gay] marriage is a fundamental right, what state restrictions could ever exist?”

But No. 2 is too narrow. It implies that the voters can treat gay people just about as badly as they please, at least if they can cite a tradition of treating them badly in the past. Not even the pro-Proposition 8 lawyer, Charles Cooper, was comfortable with that. He looked for a limiting principle but had trouble finding one. And he did himself no favors by citing as a sufficiently “rational basis” an argument which the court (correctly) didn’t find very rational, namely that the state can justifiably bar infertile couples from marrying—but only if they are gay.

No. 3 is just, well, a bit weird. Legally it may be coherent, but politically it penalizes states that try to find a compromise on marriage. On the “all or nothing” principle, it’s constitutional to discriminate against gays, provided you discriminate to the maximum extent possible. As Justice Sotomayor noted drily, “There is an irony in that.” Justice Breyer seemed incredulous.

The justices did show a lot of interest in a fourth option: an off-ramp. They would decide that the plaintiffs lack standing to bring the case, because California had chosen not to appeal a district court’s decision overturning Proposition 8. The effect would be to knock down California’s gay-marriage ban on a technicality, without affecting the rest of the country.

Politically the off-ramp presents problems of its own. As several justices pointed out, it implies that if state officials don’t like the result of a voter initiative, they could subvert it by defending it badly, baiting a court to overturn it, and then choosing not to appeal.

So: the law is unhelpful, but the politics are hard. But if I had to guess, I’d say that option 4, the off-ramp, will look less unappealing that the other three options. I didn’t see five votes for anything else.

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