The Supreme Court’s decision on Friday to take on two challenges to anti-gay marriage laws has attracted widespread attention. But equally remarkable is the fact that neither of the governments whose laws are in question are even willing to stand behind those laws. It is as if we held a Super Bowl and one team failed to show up. The Obama administration has declined to defend the Defense of Marriage Act, the 1996 law signed by Bill Clinton that denies federal pension, health, and survivor benefits to same-sex married couples; and the governor and attorney general of California have declined to defend Proposition 8, a ballot initiative that passed in state elections in 2008 and amended California’s constitution to limit marriage to a union of a man and woman. In both cases—United States v. Windsor and Hollingsworth v. Perry—surrogates are standing in to defend the laws in their stead. We have moved from “the crime not fit to be named” to the laws not fit to be defended. It once was considered shameful to be a homosexual; today it is shameful to be anti-gay. In an important sense, the gay rights advocates have already won.
But don’t be fooled; the one-sided appearance of the cases does not mean that a Supreme Court victory for proponents of same-sex marriage is assured. The constitutional arguments in favor of marriage equality are very strong: laws recognizing marriage only for opposite-sex couples discriminate on the basis of sexual orientation, and no one has been able to marshal any rational justification for denying equal treatment. But the Roberts Court is a profoundly conservative institution; the limitation of marriage to opposite-sex couples has deep cultural and religious roots; and a decision declaring that limitation unconstitutional could have wide-ranging repercussions. Despite unprecedented progress toward marriage equality in the past decade, forty-one states still do not recognize gay marriage. Is the Supreme Court ready to require every state—including such states as Louisiana and Mississippi, where Christian and social conservatives have wide influence —to do so? And if it did uphold such a requirement, how would the states react? Constitutional doctrine gives a clear legal footing to gay marriage, but political realities may intrude.
While both cases challenge laws that define marriage as a union between a man and a woman on grounds that they violate the principle of equal protection, there are important differences between the two. United States v. Windsor concerns one provision of the Defense of Marriage Act (DOMA) which denies benefits under more than 1,000 federal laws to same-sex couples married in states that recognize same-sex marriage. Congress has long deferred to the states to define and determine who is validly married, because family law is typically the province of the states. But in 1996, when the Hawaii Supreme Court was on the verge of ruling that its state constitution required equal recognition of same-sex marriage, Congress panicked and enacted DOMA, a preemptive strike against any such developments. Several lower courts have declared the DOMA provision unconstitutional, finding that the law is discriminatory and that Congress had no good reason to deny to same-sex couples the benefits it extends to opposite-sex couples.
The law under review in Hollingsworth v. Perry is Proposition 8, a referendum adopted by California voters in 2008 in response to a California Supreme Court decision that declared the state’s failure to recognize same-sex marriage unconstitutional under California’s constitution. The voters effectively reversed that decision by amending the state’s constitution to limit marriage to unions between a man and a woman. But when the unlikely legal team of David Boies and Ted Olson, who faced off against each other in Bush v. Gore, joined forces to challenge Proposition 8, the federal courts declared it unconstitutional under the US Constitution’s Equal Protection Clause. As in the DOMA case, the courts ruled that California had discriminated against same-sex couples without legal justification.
At bottom, the issue in both cases is whether governments have a legitimate reason to deny to same-sex couples the recognition, status, and benefits that they afford to opposite-sex couples who marry. Almost every court to examine that question in the past decade, including federal courts in New York, Massachusetts, and California, and state supreme courts in Iowa, Connecticut, Massachusetts, and California, has concluded that they do not.
Indeed, the absence of any good defense in part explains the decision by California and the United States not to defend their laws. House Republicans, standing in to defend DOMA, argue that denying federal benefits to gay married couples (1) maintains uniformity in the definition of marriage, (2) protects taxpayer dollars, (3) encourages responsible procreation, and (4) preserves the traditional understanding of marriage. But as the US Court of Appeals for the Second Circuit ruled, none of these rationales is satisfactory.
First, because marriage definitions are a matter of state law, they already vary across states, and selectively denying federal benefits to some married couples does not alter the state law definitions in the slightest. Second, the Court has long held that saving money is not a legitimate justification for discrimination. Third, denying federal benefits to gay couples does nothing to “encourage responsible procreation.” Same-sex couples already have and raise children, and many opposite-sex couples do not. Surely no one thinks that if only opposite-sex marriage is recognized, gay couples will abandon their sexual identity and partners and instead marry someone of the opposite sex, or that heterosexual couples will forego marriage simply because same-sex couples can also marry.
The fourth reason is of course the real motivation behind anti-gay-marriage laws—to preserve the traditional understanding of marriage, and by implication, to express moral disapproval of same-sex relationships. But the Supreme Court has already held, in striking down a Texas law banning homosexual sodomy, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” Notably, that decision was written by Justice Anthony Kennedy, who is likely to be a crucial “swing vote” in the marriage cases as well. And without such recourse to morality and tradition, governments are left fishing for rationales that are patently unsatisfactory. Thus, California’s Proposition 8 defenders advanced similar arguments to those made by the House Republicans, with the same result.
On the merits, then, the constitutional argument in favor of marriage equality is overwhelming. But will the Supreme Court apply the Constitution and reach that result? Doing so in the DOMA case seems relatively easy. Because Congress has little or no role in family law matters, to strike down the federal law would not necessarily require states themselves to recognize gay marriage.
The California case is more difficult; if California’s own voters cannot constitutionally define marriage as a union between a man and a woman, why should any state be permitted to do so? The US Court of Appeals for the Ninth Circuit offered a “narrow” rationale for invalidating California’s law that would not necessarily call into question the law of every other state, by stressing the fact that the California voters withdrew the right to marry that the state’s supreme court had six months earlier granted to gay couples. But, as I argued when the court of appeals decision was issued last February, it seems highly unlikely that the constitutionality of denying gay marriage will depend on the fortuity of when a state chose to deny it—before or after a judicial decision.
There may yet be a way to avoid ruling in either or both of the cases, precisely because the United States and California are not defending their own laws. The Court’s orders granting review specifically directed the parties to address whether the House Republicans in Windsor and the Proposition 8 proponents in Perry have legal “standing” to pursue the appeals. If the Court ruled that either party lacked standing, that is, was not a proper party to defend the law, the Court could duck the issue altogether, and allow the matter to develop further through the political process.
Whatever the Court does will affect gay marriage only in the short term. The political tide has turned decisively in the direction of marriage equality, and nothing the Court does can stop it. Polls show that two-thirds of Americans today support recognition of gay marriage or civil unions for gay couples, and young people favor marriage equality by especially large margins. In the 2012 elections, marriage equality proponents prevailed in all four states where gay marriage was on the ballot, and President Obama’s announcement in May that he had (finally) decided to support gay marriage appears to have cost him no votes. The statistician Nate Silver has predicted, based on state-by-state demographic poll results, that by 2016, the only states that do not have a solid majority in favor of gay marriage will be in the Deep South, and that by 2024, a majority will support gay marriage even in Mississippi, which he predicts will be the longest hold-out. Gay marriage is an inevitability.
But if the Court’s decisions in the gay marriage cases may not have lasting consequences for gay marriage, they are likely to have historic significance for the legacy of the Roberts Court. If it upholds the laws at issue, its decisions will almost certainly come to be viewed as the Plessy v. Ferguson of the twenty-first century, defending and reinforcing a deeply discriminatory practice without good constitutional reason. If, by contrast, the Court rules, as it should, that marriage equality is constitutionally required, its decisions will be celebrated in the history books alongside Brown v. Board of Education. Which side would you want to be on?