The Supreme Court took up the subject of same-sex marriage today in the most extreme possible way—which should scare the dickens out of the activists who brought the issue to a head.
First the Court granted review to consider the constitutionality of Proposition 8, the law California voters passed in 2008 restricting the definition of marriage to “the union of a man and a woman.” In Perry v. Hollingsworth, superlawyers Ted Olson and David Boies successfully challenged Prop 8—both the district court and the federal appeals court agreed that the law had violated the Constitution. On Friday, the Supreme Court accepted the appeal of that latest ruling to address whether the 14th Amendment’s Equal Protection Clause does in fact prohibit the law.
In other words, Pow! The court has now given itself the opportunity to rule that gay marriage is protected by the Constitution, full stop. That states are required to allow same-sex couples to marry, just as they are required to allow, say, interracial couples to marry. And just like Roe v. Wade in 1973, such a ruling would invalidate the laws of most of the states of the union. (Even interracial marriage was still illegal in dozens of American states when the court struck it down in 1967.)
The Supreme Court could still decide to resolve the case on narrower grounds and not reach the question of whether same-sex marriage is protected. The lower federal court—the Ninth Circuit Court of Appeals—took exactly that route, crafting a ruling that applies only in the very peculiar circumstances of Prop 8. But the early indications are that the high court is in fact very interested in ruling on the central issue: in agreeing to hear Perry v. Hollingsworth, it adopted the extreme way the petitioners framed the question—that is, whether “the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.”
This may sound neutral, but it’s not. Why? The 14th Amendment forbids discrimination, yet the petitioners’ question completely erases the people discriminated against—same-sex couples.
So by choosing not to reframe the question in less loaded terms, the court passed up its first opportunity to avoid conscription into the culture wars. This was not lost on the lawyers fighting the case: on a conference call after the announcement, Boies and Olson sounded strangely jubilant. “We will finally get a decision on the merits with respect to marriage equality,” Boies stated. “This is a momentous case.”
But make no mistake—for anyone who supports the right of same-sex couples to marry, it’s a very dangerous case. Because if there’s one thing the Supreme Court has learned since it last invalidated a bunch of state laws on equality grounds, it’s to avoid invalidating a bunch of state laws on equality grounds. (See, for example, the decades of blowback that have followed Roe v. Wade, or the school-desegregation rulings.) Yet the wholesale adoption of the anti-gay petitioners’ question puts the Court squarely in the middle of that path.
Sure, they can invalidate a bunch of state laws … or they can (shudder) avoid that sticky outcome by simply sustaining California’s law.
It didn’t have to be this way. The lawyers for the establishment gay movement had presented the court with a ready-made escape hatch from a head-on confrontation between the 14th Amendment and the laws of scores of states. In a series of well-crafted challenges to the federal Defense of Marriage Act, the movement lawyers asked the court to rule that the federal government can’t deny federal benefits to gay couples who’ve gotten married in one of the (growing) handful of states which permit gay marriage. The DOMA cases sent the court a clear message: we want you to get the ball rolling by striking down part of the DOMA, but we’re not asking you to pull another Roe v. Wade. (Even many defenders of a woman’s right to choose believe that Roe created at least as many problems as it solved.)
But the court didn’t take the bait. In its second remarkable decision today, it granted review to one of those DOMA cases alongside, not in front of, Perry. Even though no one’s allowed to peek behind the velvet curtain, it’s pretty obvious which case will drive the discussion. So the court is doing exactly what it usually tries to avoid.
At the same time, the Court ordered the parties in the California case to argue a question no one asked directly—whether the petitioners, who want to keep marriage between a man and a woman, had the right to bring the case in the first place, an issue called “standing.” Normally the people who defend a state law like Prop 8 are the state’s governor or its attorney general. But, obviously sensing the issue was radioactive, both of them backed away from defending the law. So instead the activists who had cooked up the initiative in the first place (their website is ProtectMarriage.com) stepped in to defend it. If the court finds that the petitioners had no standing to appeal the ruling below, it can duck the whole constitutional gay-marriage thing and just send the case back to the lower court. Perry and the other plaintiffs might be able to marry, but the ruling would mean little else, and the whole thing would have to start over again.
Imposing procedural barriers like standing to kick litigants out of court is called exercising the “passive virtues”—in other words, it’s a good way to avoid getting into a hot political dispute. The court did that a lot before it decided the birth-control cases in the ’60s and the much-criticized decision mandating one man, one vote. When it hides behind the passive virtues, the court is hoping that the political branches—Congress, the state legislatures, and electorates—might decide what’s best without the court forcing it on them.
As a result of today’s decisions, the court appears as divided and polarized as the rest of America. In one set of orders, the court has revealed that it’s contemplating two extreme and opposite courses. Take the California case and impose gay marriage on the states as a matter of constitutional fiat? Or find a nitpicking way to avoid making any decision until some more states have acted on their own?
It makes good political theater. On Hardball, Chris Mathews hyperventilated that with the court’s action today, we go “again into that tunnel of time, debate and, yes, honest reflection, out of which comes a freer, more liberal America.”
Maybe it will be a triumphal march. But for people who care about gay rights, it looks like the court just embarked upon one perilous journey.