Underneath all the arcane legal fencing in this week’s Supreme Court oral arguments on marriage lies a basic question: Why should the justices take on the job of redefining marriage laws for the nation?
Is it the best venue for making decisions that could fundamentally change social institutions such as marriage? Is it the courts, in the person of unelected life-tenured justices? Or is it the democratic process in the states and in Congress?
At least some elected officials, including President Barack Obama and many Democratic members of Congress are saying to the high court: “You decide this.”
Even some Democratic members of Congress, such as Sen. Patrick Leahy of Vermont, who voted for the 1996 Defense of Marriage Act (DOMA) defining marriage as “a legal union between one man and one woman as husband and wife,” told the high court in their amicus brief that they’d made a big mistake in 1996 -- and now they want the justices to fix it.
But at least some of the justices are pushing back and saying to the politicians: “Why don’t you decide this?”
Justice Samuel Alito said to Solicitor General Donald Verrilli on Tuesday as Verrilli was urging the court to strike down California's traditional marriage definition: “You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cellphones or the Internet?”
Alito said that he and his fellow justices “do not have the ability to see the future,” implying that they shouldn’t be the lawmakers for American society.
The court does have experience in overriding decisions made by the people and their elected representatives and spurring fundamental social change – for example, the Brown v. Board of Education decision that ordered an end to racial segregation in public schools in 1954 and the 1973 Roe v. Wade ruling that legalized most abortions nationwide.
Whether the court wants the job of social change-maker on marriage remains to be seen.
It may hinge on Justice Anthony Kennedy’s view of Section 3 of DOMA. If Kennedy and his colleagues strike down Section 3, then, as Verrilli said, it is “difficult” to see how laws in the 38 states that define marriage almost exactly as Section 3 does would survive court challenges.
Both Charles Cooper, the lawyer defending California’s traditional marriage law before the court on Tuesday, and Paul Clement on Wednesday defending section 3 of DOMA, pleaded with the justices to let the democratic process work.
“Persuasion,” Clement said in his closing argument. “That's what the democratic process requires. You have to persuade somebody you're right… That's going on across the country. Colorado, the state that brought you Amendment 2 (which essentially banned gay rights in the state in 1992), has just recognized civil unions. Maine, that was pointed to in the record in this case as being evidence of the persistence of discrimination because they voted down a statewide (same-sex) referendum, the next election cycle it came out the other way.”
Clement implied that the political momentum is all in the direction of gay and lesbian rights.
But he omitted mention of North Carolina, which last May became the thirtieth state in the union to amend its constitution to prohibit same-sex marriages. Three out of five North Carolina voters voted for the amendment.
Chief Justice Roberts also seemed to making a case for the court staying out of the fray, implying that gays and lesbians are powerful enough to get politicians’ attention.
In an allusion to recent same-sex marriage endorsements by politicians such as Sen. Kay Hagan, D-N.C., and Sen. Rob Portman, R-Ohio, Roberts told lawyer Roberta Kaplan -- representing Edith Windsor, who is seeking to have DOMA overturned -- that “political figures are falling over themselves to endorse your side of the case.”
He told Kaplan that “the political force and effectiveness of people representing, supporting your side of the case” had led to laws being changed in nine states to allow same-sex couples to marry.
He asked “You don't doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?”
Kaplan disagreed. Her argument and the Obama administration’s rests partly on a contention that gays and lesbians are a politically powerless minority.
In his brief, Verrilli wrote that “the final consideration is whether gays and lesbian people are ‘a minority or politically powerless.’ They are both.” If gays are powerless and are what the courts call “a suspect class,” then it is easier to strike down laws that affect them under Supreme Court precedents.
Evidence that gays and lesbians aren’t powerless is that politicians such as Hagan, who is up for re-election next year in a state that just banned same-sex marriages, are now not shy about joining the same-sex marriage cause.
But to say it’s no longer too politically risky for Hagan in North Carolina to endorse the right of same-sex couples to marry is not the same as saying there are now the votes in North Carolina to rescind the marriage law which voters enacted just last year.
Putting national polls aside for the moment, it may be useful to look at the pattern of voting in states where real, flesh-and-blood voters have recently voted on marriage.
Maryland voters last November approved a referendum that allows gay and lesbian couples to marry. The vote was 52.4 percent to 47.6 percent – this is in a state that Obama carried with 62 percent.
The pattern reflected the long-standing urban/rural split in politics; urban and suburban counties such as Montgomery County, in the suburbs of Washington, D.C., approved the measure. Two-thirds of Montgomery County voters voted for it.
But in rural counties such as Harford County, the measure was defeated. It was also narrowly defeated in predominantly African-American Prince George’s County in the Washington suburbs.
The pattern in the state of Washington, where voters last November approved a measure legalizing same-sex marriage, was the same. In suburban Snohomish County, 53 percent of voters voted for legal recognition of same-sex marriages; just across the mountains in rural Chelan County, 57 percent of voters rejected same-sex marriages.
Many of the 38 states that have traditional marriage laws have conservative electorates that more closely resemble rural counties' electorates than urban ones. It may be, as Clement argued, that momentum will eventually move people in those 38 states to OK same-sex marriages, or it may be that Kennedy and his colleagues won’t wait, and will decide the question for them.