The following contribution to our same-sex marriage symposium is by David B. Cruz, Professor of Law at the University of Southern California Gould School of Law. David teaches and writes on constitutional law and sex, gender, and sexual orientation law. He is also a General Counsel for the American Civil Liberties Union and a co-President of the International Lesbian, Gay, Bi, Trans, and Intersex Law Association (ILGLaw), and he blogs at cruzlines.org. The views expressed in this post are solely his.
David Boies and Ted Olson, lead attorneys for the couples challenging Proposition 8 in federal court, and the American Foundation for Equal Rights, formed to bring such litigation, believe that they can secure five votes on the Supreme Court for a sweeping, Loving v. Virginia-like ruling in favor of the right to marry for same-sex couples. Similarly, University of Texas law professor Justin Driver has argued in a Washington Post op-ed ("Why this Supreme Court could be the best hope for gay-marriage advocates," June 24, 2011) that "the current court may be prepared to recognize a right to same-sex marriage, even though the issue remains hotly contested" in U.S. society.
A ruling in favor of the Perry v. Schwarzenegger (now Perry v. Brown) plaintiffs on unqualified right-to-marry grounds would be sweeping, effectively invalidating the laws of the forty-five states that exclude same-sex couples from civil marriage. That would not be inherently objectionable on federalism grounds, because "federalism" properly refers to the U.S. system of government's allocation of governance between national and state levels, not to a commitment to states' rights Ã¼ber alles.
Fundamental constitutional rights are by and large uniform throughout the country, equally enjoyed by all citizens (and in many cases by all persons), and states are limited in their ability to experiment at the expense of fundamental rights. Just as Loving v. Virginia properly terminated state marriage exclusions based on race, a ruling in Perry that the federal Constitution protects a right to marry irrespective of sex or sexual orientation would properly end such state marriage exclusions in the name of the Constitution.
Such a ruling, however, is exceedingly unlikely, pace Olson or Driver. This prediction is not new; many, including my friend and fellow symposium participant Bill Eskridge, have made it. But it is worth reiterating now, as SCOTUSblog turns to marriage exclusions and the nation begins to focus on the 2012 elections.
What divides Prof. Driver from those he dubs "consensus constitutionalists" is a descriptive disagreement about how the Supreme Court decides cases. Many scholars have argued that the Court does not tend to get greatly out of sync with majority sentiment, and when it does not to stay there long. Those urging caution about bringing the access-to-marriage issue before the Supreme Court note that the Court ducked an interracial marriage case from Virginia the year following Brown v. Board of Education, out of concern that the issue was too incendiary and likely to interfere with enforcement of Brown's desegregation mandate, and that the Court only got around to invalidating Virginia's interracial marriage ban a dozen years later in Loving, after the political branches of the federal government had taken repeated action to fight racial segregation.
Driver downplays the change in state laws banning interracial marriage "“ from twenty-nine when the Court ducked in 1955 to sixteen when Loving struck down Virginia's ban in 1967. Instead, he emphasizes the high level of popular opposition to interracial marriage at the time Loving was decided. Yet the Supreme Court is a legal institution, and it is generally to state laws that the Court says it looks when it is adjudicating fundamental rights, not to Gallup polls (as the Court's own critics of its fundamental rights jurisprudence have pointed out). Likewise, in barring imposition of the death penalty for mentally retarded persons, juvenile offenders, and even those who raped children, the Court took into account state law and legal practice.
There is no denying that the Court does not always follow public opinion. Driver cites the Supreme Court's late 1980s case invalidating state laws banning flag burning. But this is not the best analogy. Many on the Court have long been committed to the First Amendment's protection of dissent, and prosecutions under the flag-burning statutes around the country were clearly about suppressing dissenting expression using means that many found offensive. For those reasons, what is more striking is the narrow five-to-four majority by which the Court sided with the First Amendment.
A better analogy, and a case conspicuously absent from Driver's prognostications about the Court and marriage equality, is Roe v. Wade. There, the Court invalidated many states' criminal abortion bans when it struck down Texas's law in the name of an unenumerated fundamental right of privacy. Although scholars such as Reva Siegel have recently questioned the precise role Roe played in the galvanization of the pro-life movement, Roe has long been understood as prompting backlash. Abortion rights, abortion providers, and women who sought abortions all became targets of pro-life resistance to the Burger Court's constitutional vision of reproductive autonomy. And the Court found its decision under near-constant attack by those who would see it overruled, a challenge that continues to this day.
Even Justice Ruth Bader Ginsburg, a champion of women's rights and reproductive freedom, is on record as suggesting that the Court moved too fast in Roe v. Wade when it enunciated the trimester framework that rendered so many laws unconstitutional. Whether or not people such as Olson and Driver are right to count on Justice Kennedy as a vote in favor of holding that the right to marry extends to same-sex couples, they appear overconfident that this position will command the votes of all four more "liberal" justices "“ particularly since a broad right-to-marry ruling is unnecessary to hold either Prop. 8 or the Defense of Marriage Act unconstitutional.
As my colleague Rebecca Brown has written in an American Constitution Society issue brief, Proposition 8 is unconstitutional under venerable, and narrow, equal protection grounds. Briefly, because Prop. 8 takes away the title and status of marriage from people (same-sex couples) otherwise entitled to the California-law consequences of marriages; because the state supreme court has authoritatively construed this exclusion from marriage per se to be stigmatizing; and because the proof at trial showed that the official campaign for Prop. 8 relied on pejorative stereotypes about gay people, the Ninth Circuit or the Supreme Court could uphold Chief Judge Walker's ruling against Prop. 8 on equal protection grounds quite specific to the situation in California. Thus, even if the official sponsors of Prop. 8 can manage to establish that they have standing to appeal Walker's judgment in federal court, something I have argued they lack, they should still lose on appeal even without the courts having to rely on Judge Walker's broader right-to-marry reasoning. Given at least Justice Ginsburg's seemingly sincere concerns about deciding more than she needs to, this makes the Loving-for-gay-people outcome unnecessary and unlikely.
And, of course, many might see such an animus-based equal protection ruling against Prop. 8 as a victory for federalism. Rather than interpret the Constitution to require every state in the Union to stop excluding same-sex couples, this approach would let the state-by-state "experimentation" with relationship recognition continue for the time being.
Nor is a nationwide right-to-marry ruling necessary to rule for the plaintiffs against the Defense of Marriage Act (or DOMA). The evidence of unconstitutional prejudice against lesbigay people runs riot through the Congressional Record in the debates on DOMA. Given the weakness of the claimed federal interests behind the Act, the courts of appeals and, if need be eventually, the Supreme Court should be able to strike down the federal definition section of DOMA without necessarily also proclaiming invalid the mixed-sex requirement for civil marriage in the ninety percent of states that still have it. There is therefore simply no need for those courts even to address the broader, Tenth-Amendment-based federal challenge to Section 3 brought by the Commonwealth of Massachusetts in its lawsuit. This is a good thing, because Judge Tauro's reasoning on that claim is quite problematic, as I've argued in The Defense of Marriage Act and Uncategorical Federalism in the William & Mary Bill of Rights Journal.
At the same time, DOMA Section 3 itself has features that may be troubling to a judge or Justice committed to federalism, factors that may motivate agreement with the equal protection rationale if not outright invalidation on Tenth Amendment grounds. As Uncategorical Federalism notes, DOMA may define "marriage" for federal law purposes, but it does so within the sphere of "domestic relations," which the Supreme Court has long held to be the proper province of the states, even if not 100% exclusively so. DOMA Section 3 is a novel form of federal family law, not limited to operation within any particular substantive program, and Congress plainly engaged in no sensitive balancing to determine whether it was necessary to override state marital status determinations in every single area of federal law. And Section 3 selectively disregards state marriage definitions, definitions which Section 2 purports to honor and strengthen by authorizing every state to stick with its own definitions and ignore those of other states that might allow same-sex couples to marry. Finally, note that a ruling against DOMA Section 3 is a ruling against a purported exercise of federal power, not ipso facto a ruling against states' interests.
Granted, some have suggested that the particular aspects of federal law against which Massachusetts complained in its DOMA suit are unconstitutional. In an amicus brief before the First Circuit, the conservative legal organization Liberty Counsel suggested that "Congress plainly lacks authority to fund Medicaid and Medicare under Article I of the U.S. Constitution." Were the court of appeals or the Supreme Court to hold this, that would, as Liberty Counsel rightly noted, moot Massachusetts's argument that DOMA forced it to act unlawfully with respect to medical benefits. But this would be taking states' rights to an extreme, and I am confident that, at least for today, there are not five votes on the Supreme Court for such a radical holding.