Why I’m Jittery About SCOTUS On Marriage

Andrew Sullivan —  Jan 22 2015 @ 12:02pm

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I was too sick to grapple with the recently revealed fact that the Supreme Court is going to decide some foundational issues with respect to marriage equality this spring and summer. And maybe because I’ve spent so long worrying about a premature decision that I cannot quite believe that the Fourteenth Amendment will find one more minority to protect. The power of the language and arguments in the Windsor decision would be very hard to take back, and with 36 states now offering marriage equality, the ruling would not be another Roe (there’s already a budding national majority for equal marriage rights and a huge generational shift, unlike abortion). I largely defer to those Court watchers and constitutional experts who seem to assume a done deal.

But I still have some jitters. Our post exploring some of the nuances is here. And Garrett Epps basically voices my concern thus:

[E]ven if Justice Anthony Kennedy’s vote seems foreordained, he must choose between the rights of gays and lesbians—an issue on which he has fashioned a historic legacy—and the prerogatives of the states, about whose “dignity” and honor he has often rhapsodized. He might be tempted to split the baby by holding for the states on the “celebration” issue but for the challengers on “recognition.” (The Court’s grant of review was careful to split the two questions.) That is, he might say, a state could refuse to perform marriages itself, but could not refuse those legally married out of state the benefits of marriage under state law.

In other words, the rapidity of the social change and the now hefty majority of states with marriage equality can cut both ways, it seems to me. The speed of change could indicate the Court could fudge the issue somehow, confident that democracy will continue to work its magic in the states. This was part of the Jeffrey Sutton ruling that occasioned the split in the circuit courts:

A principled jurisprudence of constitutional evolution turns on evolution in society’s values, not evolution in judges’ values. Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way. Lawrence, by contrast, dealt with a situation in which just thirteen States continued to prohibit sodomy, and even then most of those laws had fallen into desuetude, rarely being enforced at all. On this record, what right do we have to say that societal values, as opposed to judicial values, have evolved toward agreement in favor of same-sex marriage? …

In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

My italics. You have here a Burkean defense of federalism – something that will very much appeal to Anthony Kennedy, it seems to me. The problem, however, is that the pace of change has quickened so much after Windsor that Sutton is already out-dated. It’s now 36 states, not 19, representing 70 percent of the population, not 45. So his analogy to sodomy laws rather evaporates. If sodomy was upheld as a legitimate zone of privacy, when only 13 states retained such laws, why could not marriage for all couples be upheld as a constitutional right, when only 14 states ban it? Here’s the state of public opinion in the last two decades:

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The generational shift reveals nearly 80 percent support for marriage equality among the under 30s, and an even split among the over 65s. So whatever else a federal right to marry for gays would be, it sure wouldn’t be a judicial fiat of a fringe minority view. It would be a judicial confirmation of a major shift in public mores and beliefs. That’s the other Burkean argument that judicial intervention at this point is not premature.

Consider the analogy with inter-racial marriage. In 1967, when Loving vs Virginia was decided, fifteen states retained active bans (about the same as those states that now ban gay marriage). But the polling back then was far more hostile to inter-racial marriage than to gay marriage in 2014.

While over 50 percent of Americans have backed marriage equality over the past few years, a mere 20 percent of Americans approved of miscegenation, when it was ruled unconstitutional. Approval of inter-racial marriage would not get above 50 percent until the mid-1990s, thirty years later:

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But what about the states’ rights argument? If public opinion is moving so fast, why not let federalism take its course? That’s my worry. Could Kennedy fashion a ruling that keeps marriage equality in those states that already have it, allow the minority to retain bans, but insist that any valid civil gay marriage in one state be recognized in any other? I don’t know how constitutionally you could do this – but I don’t doubt figuring out a balance between federalism and civil rights is what Kennedy (and maybe Roberts) will be assessing. A non-Fourteenth Amendment decision that nonetheless insisted on recognition, if not celebration, of same-sex marriages in every state might be a tempting middle way.

The case against this, it seems to me, is a simple one: confusion and complexity and timing. When a debate has been won so clearly in public opinion, when 36 states and DC already have marriage equality, and when the core dignity and equality of gay citizens is really at stake, why not just get it over with? To have your civil marriage in doubt when you travel across one country would be utterly unacceptable (and rightly so) to every heterosexual married couple). Why give the republic and gay citizens this kind of headache, when the argument is all but over? It wouldn’t be judicial over-reach; it might even be greeted with relief by many Republicans; and it would cement Kennedy’s standing as the champion of civil rights in our time. John Roberts might even be tempted to join Kennedy, if he wants to the Court to gain some respect from the next generation and exultation from millions of gay people and their families.

So maybe I’ve just talked myself out of a serious worry that something could go wrong. Or maybe I’m just jittery when so many seem to believe a triumph is a foregone conclusion. Or maybe I’ve been at this too long and am still psychologically unable to believe we have finally arrived. But as a Burkean federalist who believes in the value of slow incremental change through an emerging public consensus, but nonetheless believes that the right to marry is indivisible from core civil equality and basic human dignity, I think I can see Kennedy’s conflicts on this. But I also sense where his logic and his soul are: it’s time for a final decision. And a clear endorsement of a federal right to marry is the only one that really currently makes sense.

(Photo: Jewel Samad/Getty.)