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Marriage Equality: Not Now, But Soon?

David Cole
At some point, the Supreme Court will recognize, squarely and clearly, that it is unconstitutional to exclude gays and lesbians from the benefits (and burdens) of marriage. Anti-gay-marriage laws will be viewed with the same condemnation as anti-miscegenation laws.
Proposition 8.jpg

Robert Galbraith/Reuters/Corbis

Celebrating a lower court victory for marriage equality, San Francisco, June 5, 2012

Perhaps the most prescient question in two days of oral arguments in the Supreme Court this week about laws forbidding same-sex marriage came, unwittingly, from Justice Antonin Scalia, who asked, “When did it become unconstitutional to exclude homosexual couples from marriage?” To Scalia, if it wasn’t unconstitutional when the Constitution was drafted, it cannot be unconstitutional today. But at some point in the not too distant future, it seems likely that the correct answer to Justice Scalia’s question will be: “When the Supreme Court announced that it was.” The year of that decision, however, may not be 2013.

This week’s oral arguments—in cases challenging California’s Proposition 8, which bans gay marriage in that state, and the Defense of Marriage Act (DOMA), a 1996 federal law defining marriage as between a man and a woman—revealed a Court that is deeply divided about marriage equality. That is hardly surprising, since the Court is often divided along predictable lines on controversial issues. But the arguments also reflected surprising consensus. Charles Cooper, arguing in support of Proposition 8, admitted that outside the marriage issue, he could not think of any instance where discrimination on the basis of sexual orientation would be justified. And not a single member of the Court expressed any sympathy with moral disapproval of homosexuality. The arguments provided still further evidence that our culture’s understanding of the issue has evolved—and continues to evolve—rapidly. Nevertheless, several justices expressed concern about a sweeping intervention in this ongoing debate, and because both cases offer avenues for resolution that allow the Court to avoid deciding the ultimate question of marriage equality, neither is likely to be a landmark decision along the lines of Brown v. Board of Education, which proclaimed an end to racial segregation. The struggle for marriage equality will continue.

The two cases raise related but different issues. In Hollingsworth v. Perry, gay couples who seek to marry challenged the constitutionality of Proposition 8, a referendum measure that amended Calfornia’s state constitution in 2008. In United States v. Windsor, a woman in New York sued to recover federal estate taxes she had to pay when her same-sex spouse, in a marriage recognized by New York, died. She had to pay the estate tax because of a provision of DOMA that excludes homosexual couples married in states that recognize gay marriage from federal benefits under more than 1,000 laws, including social security and survivors’ benefits.

On the merits, the constitutional arguments for striking down both laws are very strong. The ultimate question is whether the government has any good reason to exclude same-sex couples from the considerable benefits of marriage. In neither case have the laws’ defenders articulated a rational reason.

Proposition 8, according to its defenders, encourages “responsible procreation.” They argue that because opposite-sex couples are the only ones who might otherwise procreate outside marriage, it makes sense to limit marriage to heterosexuals. But same-sex couples obviously can and do procreate, through in vitro fertilization and surrogate mothers. They also adopt children. Indeed, as Justice Anthony Kennedy noted, there are 40,000 children of same-sex couples in California alone. As he put it, “the voice of those children is important in this cases, don’t you think?” And California extends marriage to all heterosexual couples, regardless of their procreative capacities or inclinations. If that’s the best reason California can offer, the law should be struck down.

DOMA’s defenders have an even tougher case. The federal government has no interest in regulating marriage, which has always been a province of state law. And there is no evidence that how the federal government apportions its benefits affects state marriage laws. Congress’s refusal to extend estate tax benefits to gay married couples in New York, while directly injuring those couples, appears to serve no legitimate interest. Its actual purpose is clear. As the House Report accompanying the bill stated, “Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.” That rationale is patently invalid—and it is a mark of some progress that no one sought to defend the law on the ground that Congress itself openly asserted in 1996.

But to the conservative justices, Congress’s admission of guilt was not sufficient to doom the law. Chief Justice John Roberts questioned whether that statement really reflected the views of all 84 Senators who voted for the law, as if to suggest that so many Senators could not possibly harbor anti-gay prejudice. Yet the very fact that such a statement appears in the official record of a bill that received such widespread support shows that many of them may well have—or at least were willing to cater to the prejudices of their constituents.


Paul Clement, defending DOMA for the Republican House leadership, sought to deflect attention from that evidence of animus. Engaging in revisionist history, he suggested that when it dawned on Congress that different states might define marriage in different ways, Congress limited its benefits were limited to opposite-sex marriages in order to further “uniformity.” But as Justice Stephen Breyer noted, state marriage laws already differ in many ways, such as the age at which they permit people to marry, on the length of residence required before one can marry in a given state, and whether a blood test is required, and the like. Would it be rational, he asked, to pursue “uniformity” by denying federal benefits to married couples in states that did not require blood tests? If not, why is it rational to exclude same-sex marriages? Clement did not have an answer.

But it remains unclear whether the Court will decide either case on the merits. As I have noted before, both cases are complicated by the fact that neither California nor the United States is willing to defend its own law. Indeed, both California and the United States Solicitor General submitted briefs arguing that their own laws were unconstitutional. Ordinarily, when a state agrees that its law is invalid, it declines to appeal and the case is over. Nevertheless, both of these cases have reached the Supreme Court. In the California case, those who proposed Proposition 8 in the first place intervened to defend the law, and have appealed the lower court decisions invalidating the law. In the DOMA case, the Obama administration appealed, contending that despite its conclusion that the law is invalid, it will continue to enforce it until there is a final court resolution striking it down.

There is a strong argument that the California case must be dismissed at the threshold—without the Court’s considering the merits of marriage equality. Under the Court’s precedents, the party that appeals must be able to identify a distinct personal injury that it has suffered. But the defenders of Proposition 8 want to see the law enforced only out of their ideological beliefs about marriage, and can point to no concrete personal harm resulting from its invalidity. The Court has repeatedly ruled that such a “generalized” interest is not sufficient to create a concrete “case or controversy” appropriate for court resolution. The defenders also argue that they are pursuing the state’s interest, but they are wholly unaccountable to the people or government of California, and are free to pursue their own ideological agenda unmoored from any state concern. At argument, five Justices expressed reservations about whether the Proposition 8 defenders suffered sufficient injury. If a majority of the Court so concludes, it would dismiss the appeal for lack of “standing.” If that happens, the lower court decision invalidating Proposition 8 would stand, and same-sex couples would be allowed to marry in California; but there would be no implications for any other state.

The DOMA case is different because the United States itself appealed, and has taken the position that it will not pay the estate tax sought by the challenger unless the DOMA provision is finally ruled invalid. The US government has suffered an injury—its law has been declared invalid, and it has been ordered to pay out federal funds. And the President has taken the permissible position that while he personally believes the law unconstitutional, he will enforce it until there is a final judicial resolution of that question. That approach makes sense, as otherwise it could be extraordinarily difficult to obtain a final resolution of the constitutionality of a statute that Congress supports but that the President believes is invalid. Moreover, while the Republican House leadership lacks standing for the same reasons that the California Proposition 8 defenders do, their participation has ensured that the Court has heard both sides of the argument.

We won’t know how the cases will turn out until June. A dismissal of the California appeal for lack of standing, which seems likely, would leave for another day the question of whether states have the power under the Constitution to exclude gays and lesbians from marriage. The Court is more likely to decide the DOMA case on the merits, and to agree with the lower federal courts who have virtually unanimously struck it down. The Court’s four liberal justices made clear that they see no good reason for excluding gays and lesbians from marriage under state or federal law, and Justice Kennedy, the likely swing vote, repeatedly expressed concern that DOMA interferes improperly with the states’ power to regulate marriage. The fact that marriage is the province of the states makes any purported federal justification for treating same-sex marriages differently substantially weaker. But by the same token, a decision declaring DOMA unconstitutional in part on this basis would also leave unaddressed whether states may deny marriage to same-sex couples. Thus, neither case is likely to provide a definitive resolution to the broader issue.


At some point, the Supreme Court will recognize, squarely and clearly, that it is unconstitutional to exclude gays and lesbians from the benefits (and burdens) of marriage. Anti-gay-marriage laws will be viewed with the same condemnation as anti-miscegenation laws. Justice Scalia may think it obvious that the Constitution’s framers could never have envisioned that result—but neither would they have foreseen a world in which sex- and race-based distinctions are presumptively unconstitutional. The Constitution is not static; it reflects the nation’s deepest commitments, and adapts as those commitments evolve. The real answer to Justice Scalia’s question is “soon.” How soon is not only up to the Supreme Court, but to all of us.

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