The blog is pleased to have commentary and analysis of Friday’s grants in the marriage cases from supporters of both sides.  This post has reactions from William N. Eskridge Jr., Professor of Law at Yale, and Hans P. Johnson, President of Progressive Victory. 

For almost two generations, lesbian, gay, bisexual, and transgender (LGBT) persons have demanded equal treatment from the state for their committed relationships. For most of that period, American government has denied such claims, and leading politicians have disparaged them. In 1996, for example, Congress and President Clinton enacted the Defense of Marriage Act (DOMA), the most sweeping governmental discrimination against gay people in American history. When state judges have recognized marriage equality under state constitutions, there has been a much-noted backlash against such rulings. One example was California’s Proposition 8, which in 2008 overrode marriage equality through a voter initiative amending the state constitution.

In the last month, marriage equality for LGBT persons has emerged as the Cinderella of American public law. Once dressed in rags and consigned to the shadows, marriage equality now dances in the ballroom, pursued by suitors who once spurned it without remorse. The Clinton and Bush presidencies exploited gay marriage in their politics of scapegoating – yet President Obama just won reelection as a supporter of marriage equality. In an increasing number of cases, federal and state judges, including several Republican judges, have ruled that DOMA’s central provision and discriminatory state marriage laws violate constitutional equality guarantees.

On December 7, the Supreme Court took review in one of the DOMA cases (United States v. Windsor) and in the case challenging Proposition 8 (Hollingsworth v. Perry). The very institution that ruled in 1967 that “homosexuals” were, as a matter of law, “persons afflicted with psychopathic personality” could by June 2013 restore marriage equality in the nation’s largest state and could strike down the DOMA provision barring federal rights and benefits for lesbian and gay couples validly married under state law.

How did we get to this Cinderella moment?  What role did courts play? And what role should the U.S. Supreme Court play in the endgame?

The nation has arrived at this moment for marriage equality, essentially, because lesbian and gay couples came out of their closets. Once Americans got to know something about LGBT people and their relationships, the overwhelming anti-gay attitudes of thirty years ago have steadily eroded.   When we were growing up, in the small-town South and Midwest, almost everyone said that “homosexuals” were mentally ill and dangerous predators. Indeed, the central anti-gay stereotype was (and remains) the idea that “homosexuality” is anti-family.  This is the conceptual basis for the Clinton/Bush-era idea that marriage and family need “defending” against LGBT persons.

The marriage equality movement has contributed to the decline of anti-gay animus in this country. Not only has the movement demonstrated that LGBT people form serious relationships and raise children successfully within those relationships, but the movement’s successes in Massachusetts (2003), California (briefly in 2008), New York (2011), and other states have falsified predictions by DOMA supporters that legally recognizing same-sex marriage would undermine the institution of civil marriage. Far-sighted judges made this possible by requiring marriage recognition in their states.

Today, public opinion has shifted dramatically away from overwhelming repugnance at marriage equality, toward overall support for the idea. Confirming this shift last month, voters in Maine, Maryland, and Washington endorsed marriage equality in their states through popular initiatives, with Mainers revising their constitution to do so. And the voters in Minnesota rejected an anti-equality amendment to the state constitution, a campaign for which opponents of marriage had prepared for several years.

The election of 2012, demonstrating that it is safe for most politicians to support complete equality for sexual and gender minorities, finds a parallel in the election of 1964, which demonstrated that it was safe for most politicians to support complete equality for racial minorities.  Three years after 1964, the Supreme Court in Loving v. Virginia swept away all state laws denying marriage equality to interracial couples. Will the Court now follow Loving to sweep away all state as well as federal laws denying marriage equality to lesbian and gay couples?

In Windsor, the Second Circuit held that sexual orientation, like race, is a classification that courts need to review skeptically and that DOMA could not survive this kind of heightened scrutiny. If the Supreme Court adopted that reasoning to strike down DOMA (in Windsor) and Proposition 8 (in Perry), every state marriage law excluding lesbian and gay couples would be in immediate jeopardy, because no state could muster a compelling or substantial public interest that would satisfy the Second Circuit’s approach.

As last month’s presidential election revealed, the nation is ready to move past DOMA, and California has moved past Proposition 8. But most states are not prepared to embrace marriage equality – and the opposition in many states remains intense. A few months ago, before an audience in St. Louis, a candid law student revealed how combustible the issue remains for many Americans. One of us asked how the citizens of Missouri would respond to a Supreme Court opinion requiring that state to recognize gay marriages.  “Well,” the student said, “the guns would come out.”

The student’s assessment was partly facetious and entirely troubling.  When the population is both evenly and intensely divided on a fundamental public issue, that is not the time to close off debate entirely.  Most Americans do not care about DOMA, but almost half of the country still cares, many of them as a matter of deep faith and personal identity, about the definition of marriage in their home states. Just as a Supreme Court decision upholding DOMA and Proposition 8 would be an affront to the (largely blue) half of our country opposed to anti-gay discrimination, so a decision effectively sweeping away the marriage restrictions followed in three-quarters of the states would be an affront to the other (mostly red) half of the country.

So what should the Supreme Court do in Windsor and Perry? Surely, the Court ought not uphold DOMA, a law that disparages LGBT citizens and that creates needless expense and confusion among those administering federal law. Nor should the Court uphold Proposition 8, which entrenches second-class citizenship for LGBT persons and couples in state law. Supreme Court opinions upholding DOMA and Proposition 8 would be blunders right down there with Korematsu v. United States (upholding the internment of Japanese-American citizens) and Bowers v. Hardwick (upholding a state law criminalizing consensual sodomy).

The Court has preserved for itself other options for handling these same-sex marriage cases, however.  In the order taking review in both Windsor and Perry, the Court pointedly expanded the issues for review to include questions about the constitutional standing for the intervenors supporting DOMA in Windsor and Proposition 8 in Perry. The Court is more likely to dismiss the appeal in Perry than the appeal in Windsor on this procedural ground, but we have no prediction as to how likely it is that Perry will turn on that issue.

To the extent it reaches the merits in either appeal, the Court would be wise to rule narrowly. In another DOMA challenge that is pending before the Court, but on which the Court did not act yesterday, the First Circuit ruled that DOMA is subject to “closer than usual review” because the federal government was legislating in an area traditionally reserved for the states.   Although the Court did not grant review of the First Circuit’s decision, the Justices are free to follow its reasoning, which would invalidate DOMA without terminating the ongoing constitutional marriage equality debate in the states. Likewise, the Justices could follow the Ninth Circuit’s narrow reasoning in Perry, which invalidated Proposition 8 because the popular revocation of equal rights did not reveal a rational basis for state discrimination.

There is good precedent for this narrow approach to the constitutional merits. The Warren Court declined to disturb anti-miscegenation laws in the 1950s, when three-fifths of the states had laws barring different-race marriages. Bowing to the blatant affront to minority citizens, lawmakers in half of those states repealed their statutes between 1957 and 1967. When the Court did act, in Loving, its insistence on marriage equality for interracial couples had greater bite because the nation’s public law conversation was coming to an end on this issue.  Contrast such a cautious approach with Roe v. Wade, issued forty years ago next month, an important ruling for which the Court has faced criticism, even from some abortion rights supporters, for ruling too broadly when the nation was not at rest on the issue of abortion rights and giving some traction to a legislative backlash.

As it did concerning marriage equality for different-race couples, the Supreme Court should move slowly but deliberately toward marriage equality for same-sex couples. If constitutional equality has any bite today, the Court ought to affirm the Second Circuit in Windsor, invalidating DOMA’s central provision, based on the closer-than-usual scrutiny outlined by the First Circuit.  If the Justices find constitutional standing for the initiative’s nongovernmental supporters in Perrythe Court ought to affirm the Ninth Circuit, invalidating California’s Proposition 8 based on the rational basis review conducted by the lower court.

The country as a whole is en route to resolution of the marriage equality issue. That result is approaching more swiftly than the pundits thought possible. Cinderella waits impatiently at the altar for her Princess Charming. Full marriage equality is no fairy tale, though it is a story whose happy ending has not quite arrived.

Posted in Hollingsworth v. Perry, U.S. v. Windsor, Featured, Same-Sex Marriage

Recommended Citation: William Eskridge and Hans Johnson, Commentary on marriage grants: Marriage equality’s Cinderella moment, SCOTUSblog (Dec. 9, 2012, 2:10 AM), http://www.scotusblog.com/2012/12/commentary-on-marriage-grants-marriage-equalitys-cinderella-moment/