In 1964, when the Supreme Court held that the Civil Rights Act’s bar on racial discrimination applied even to a small, family-owned barbecue restaurant in Birmingham, Alabama, the court rested its ruling on Congress’s power to regulate interstate commerce, rather than on the Constitution’s guarantee of “equal protection.” As Justice Tom Clark announced the opinion from the bench, Justice Arthur Goldberg scribbled a note to Justice William O. Douglas criticizing the court’s reluctance to base its decision on equality: “It sounds like hamburgers are more important than human rights.”
Today’s two Supreme Court decisions on marriage equality might be similarly described. To hear the reasoning of the court, it sounds like procedure is more important than people.
Like the court’s decision in the Birmingham barbecue case, today’s decisions undoubtedly advance the cause of equality for LGBT individuals. Yet they do so not because the justices are fully committed to equal citizenship for all Americans regardless of sexual orientation. Instead the court’s rulings focused largely on process—either how the law was passed or how the law came up for review in the court. And by focusing on process and procedure, the court severely limits the scope and implications of its rulings.
The court’s emphasis on process and procedures is most glaring in Hollingsworth v. Perry, the case involving California’s ban on same-sex marriage. Über-lawyers Ted Olson and David Boies, who famously went head-to-head in Bush v. Gore, asked the justices to hold that LGBT couples had a constitutional right to marry. If the justices had agreed, bans on same-sex marriage in 38 states might have been overturned. Alternatively, the court could have limited its ruling to California, on the theory that states can’t grant marriage rights one day and take them away the next. The justices declined to endorse either approach. Rather, the court held that it didn’t have the authority to rule on the merits of Olson and Boies’s challenge to California’s ban because the initiative’s backers, who were defending the law on appeal when California’s lawmakers refused to do so, lacked authority to represent the state’s interests. Because of this procedural problem, all the appeals in the Proposition 8 challenge were nullified.
Make no mistake, Perry is a victory for marriage equality. The trial court ruling by Judge Vaughn Walker that Proposition 8 is unconstitutional still stands, as does the injunction he issued requiring state officials to issue marriage licenses to same-sex couples. By its terms, it prohibited state officials from “applying or enforcing” Proposition 8. That would seem to mean that state officials can’t refuse to issue marriage licenses on the basis of sexual orientation to any gay couple. In other words, same-sex marriage would be immediately lawful throughout California. Yet, consistent with existing law on injunctions, Walker’s injunction is likely to be read much more narrowly, requiring only that officials permit the two same-sex couples who challenged Proposition 8 to wed. Federal district courts generally only have authority to issue injunctions applicable to the named parties in the suit, except in special cases (like class-action lawsuits).
The court’s decision may make California Gov. Jerry Brown the ultimate arbiter of Proposition 8’s fate. Generally, the executive branch is obligated to enforce laws, even if the governor is opposed to a law’s requirements. Indeed, California officials have continued to follow Proposition 8, declining to issue marriage licenses to same-sex couples. Yet, Brown may decide that, in light of Walker’s ruling, that the ban is no longer good law. He could point to the fact that there’s now a final ruling of a federal court that the law is unconstitutional, and there won’t be any serious political backlash in liberal California. In fact, he’s likely to be hailed as a hero. If, nonetheless, he decides to continue enforcing the ban, he would almost certainly lend his support for another ballot measure in California to overturn Proposition 8 in 2014. Marriage-equality proponents have already promised to push such a measure, which is likely to pass.
In any event, same-sex marriage is going to be permitted in California within the next 18 months, if not much sooner. This will itself be a major victory for marriage equality. California has approximately 1.1 million LGBT adults and 200,000 people already part of a same-sex couple; they would finally have the option of marriage. Today, only 18 percent of the American population resides in a jurisdiction allowing same-sex marriage. Once California turns, however, that number rises to 30 percent. Marriage equality in California will also mean that nearly 40 percent of the nation’s 650,000 same-sex couples will live in places where they can marry. Yet nothing in today’s opinion requires any other state to allow same-sex marriage. So couples in Mississippi and Alabama will have to wait for another day.
The DOMA case, United States v. Windsor, also furthers the cause of LGBT rights, but, in many ways, for the wrong reasons. Justice Anthony Kennedy’s majority opinion does discuss equality and recognizes that discrimination against LGBT people is often, like DOMA, merely a reflection of a “bare desire to harm a politically unpopular group.” Yet, again, much of Kennedy’s reasoning focuses on process. One of the main problems with DOMA, he writes, was that Congress, in a blunderbuss fashion, restricted the rights of same-sex couples to more than 1,000 federal benefits and programs that opposite-sex couples enjoy. In doing so, Congress interfered with the state’s traditional authority to regulate marriage. Regulation of marriage “is an area that has long been regarded as a virtually exclusive province of the States.” DOMA, Kennedy explains, “because of its reach and extent, departs from this history and tradition.”
This language may be celebrated today, but by emphasizing respect for tradition, the court may have sent a signal to lower courts that limiting marriage to one man and one woman remains constitutionally permissible. After all, allowing marriage only between one man and one woman is a longstanding tradition. If a central part of DOMA’s problem was its deviation from longstanding practice, then a state ban on same-sex marriage would not seem to pose the same problem. Moreover, Kennedy’s ode to states’ rights is hardly a boon to marriage-equality proponents. Mississippi and Alabama’s authority to define marriage as they see fit appears to be given constitutional protection.
Kennedy’s embrace of gay rights has always been hesitant and incremental. DOMA is no different.
There are other important limitations in Kennedy’s ruling that should give LGBT-rights supporters pause. Kennedy rejects the argument of the Obama administration that all laws discriminating against LGBT individuals should be subject to heightened judicial review—the same type of review laws discriminating on the basis of race or sex receive. Heightened scrutiny would have meant that discrimination on the basis of sexual orientation could be constitutional only in exceptional cases, where there was a demonstrably important reason for the disparate treatment and few other alternatives. Under that test, nearly every law discriminating against gays and lesbians would have been called into question, including marriage laws, adoption laws, and blood-donor rules. Yet the court’s refusal may be read by lower courts to mean that LGBT discrimination may still be constitutional, especially when it’s consistent with tradition rather than contrary to it.
Forsaking heightened scrutiny is on a par with Kennedy’s approach in past gay-rights cases. While Kennedy wrote some major pro-gay rights opinions for the court, those decisions have included caveats and qualifications that limited their impact. He’s consistently refused to say that LGBT classifications should receive heightened scrutiny. His opinion in the much-touted Lawrence v. Texas case, striking down same-sex sodomy bans, refused to say that gays and lesbians have a fundamental right to sexual privacy and made sure that gay-marriage bans weren’t called into question. Indeed, after surveying Lawrence, a federal appeals court said that nothing in Kennedy’s opinion required striking down a ban on gay adoption. Kennedy’s embrace of gay rights has always been hesitant and incremental. DOMA is no different.
No doubt, proponents of equal rights for all should celebrate today’s rulings. Yet they should not mistakenly ignore the limits of what the court has done. The court’s promotion of same-sex marriage is like a shotgun wedding: done with reluctance and without the loving embrace of someone fully committed to the sacred union.