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Commentary: Over the cliff?

This blog is pleased to have reactions to the oral arguments in Hollingsworth v. Perry and United States v. Windsor from guest contributors with a range of perspectives. This post has reactions from Gerard V. Bradley of Notre Dame Law School. Mr. Bradley authored an amicus brief on behalf of Dr. Paul McHugh in support of Dennis Hollingsworth and the Bipartisan Legal Advocacy Group.

No case in the Supreme Court’s history was more extensively briefed than these two.  Long gone are the days when advocates could saunter through a day or two of argument.  Measured by modern standards, however, these arguments were as thorough as any since Brown v. Board of Education.  The lawyers were at or near the top of their games.  The bench was hot.  The background American legal culture is saturated with scholarship on same-sex marriage.

The oral argument in Perry nonetheless reveals a Court worried that it does not know what it needs to know to decide the basic issue common to both cases.  Justice Kennedy voiced this concern when he said (to Ted Olson), “the problem in the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, . . . it is a cliff.”

Other Justices drew near that “cliff.”  They asked about “cause and effect” “harms” – upon children; upon same-sex couples (those in civil unions and those not); opposite-sex married couples; and upon non-familial matters which might depend upon marriage as a social “bedrock.”

Justice Alito looked for “data” on this “institution which is newer than cell phones.”   Same-sex marriage, he said, might turn out to a “good thing”, or “not”, as Proposition 8 supporters “apparently believe.”  Justice Scalia said that there is no “scientific answer” to the decisive “harm” question at this time.”  Justice Sotomayor asked the Solicitor General: why not “let[] the States experiment” for a few more years, to let society “figure out its direction.”

These worries about inadequate “data” might lead the Court to decide one or both of the cases on jurisdictional grounds, including (in Windsor) federalism bases.  But Chuck Cooper argued – correctly, in my view – that they are instead reasons to decide against the same-sex marriage claimants on the merits.  Cooper deftly folded the Court’s worries into an argument to let the “roiling” “democratic debate” rock on.  Paul Clement ended his rebuttal argument with this call: “Allow the democratic process to continue.”  Cooper concluded:  “It is an agonizingly difficult . . . political question,” one “properly decided by the people themselves.”

The people should indeed decide this matter for themselves.  But the Court’s emerging rationale for that result is a curious one.  It seems to be this: someday, perhaps soon, there will be enough “data” about the “harms” (if any there be) of same-sex marriage to warrant a definitive constitutional judgment.  But we are not there yet.  For now, the states may continue to act as Justice Brandeis so famously counted on them to act: like so many social laboratories, experimenting, measuring, and reporting the results of their field work.

This scenario suffused the Perry argument.  It did not much figure explicitly in Windsor.  But even in that case the United States maintained (as it did in Perry) that equal protection requires same-sex marriage.  A basis for DOMA in reason and not in animus is, at the very least, required.  Where will the Court find it?

The appeal of a data-dependent rationale is easy to see.  It promises to resolve a divisive moral question – is marriage a gendered relationship? – by appeal to non-moral criteria, or at least to considerations other than the moral truth about whether marriage is really a gendered relationship. This is the appeal of objectivity, of neutrality, and perhaps certainty – the appeal of “science,” even if it is of the “social” type.  It is odd, though, that what both sides of the marriage cases describe as a time-honored institution of paramount importance to individuals and to the political community – and which everyone thinks is morally loaded –  should be evaluated instrumentally, and non-morally.

Note well: the appeal of the “scientific” way out does not depend upon first concluding that there is no relevant moral truth about marriage.  Nowhere in these oral arguments did any Justice say or imply that the “science” route was eligible, because (this hypothetical Justice declared) marriage is a social construct, a malleable platform for accomplishing random good things – as if “marriage” were no definite moral reality, that it was instead really just a legal fiction.

The Justices should be wary of the “science” route.  Consider just the leading decisions mentioned during the arguments as instructive parallels to the instant cases.  Consider, for example, Plessy v. FergusonJustice Sotomayor said that the Court let segregation “perk” for fifty years, until the Justices finally pulled the plug in 1954. But the Plessy Court did not wait upon social scientific evidence of the negative effects of segregation, as Sotomayor implied that it did. That Court was instead party to – at best – a sordid compromise with entrenched racist elements in American society.

Brown overruled Plessy.  The Court’s terse opinion there depended almost exclusively upon the asserted negative psychological effects of segregated schools upon African-American school children, and a resulting “stigma.”  But the social science evidence adduced in Brown was then flimsy.  Since then, it has been all but entirely discredited.

No matter: Brown was rightly decided for the same reasons that Loving v.Virginia was.  The Loving colloquy between Ted Olson and Justice Kennedy was inconclusive, and almost unintelligible.  But it is clear enough that if social science evidence about the psychological traumas of biracial children circa 1967 had been the deciding factor, Loving would certainly have come out differently.

The Loving Court rightly had none of that.  It decided that the anti-miscegenation law was “an endorsement of the doctrine of White supremacy”, and there was an end to it.  This is the rationale which Brown needed, but which it sacrificed to the allure of “data.”

Roe v. Wade was not mentioned during the two arguments, even though many commentators cite it as the most instructive parallel to the marriage cases (not as a doctrinal authority, but considered as an exercise of judicial statesmanship)The Roe Court faced a comparably divisive moral question.  It expressly confessed an incompetence which seems to be implicitly but powerfully shaping the Court now: a felt unsuitability to resolve a “difficult moral question” – in Roe, when life begins; in the marriage cases, whether marriage is a prepolitical relationship which is intrinsically gendered.

At several points in his argument, Chuck Cooper tried to draw the Justices into a moralistic (if you will) discussion of marriage.  He habitually referred to the respondents’ proposed “redefinition” of marriage.  He asserted that because “marriage itself is a gendered institution,”’ same-sex couples are simply unsuited to marry.  He said that its gendered nature owed to the essential connection of the meaning of marriage to procreation.  He spoke of marriage’s beneficial social effects.  But mainly he spoke in this connection about the harmful effects upon marriage of redefining it as genderless.

At those moments Cooper did not speak of what the law has long been (which could be swatted aside with Holmes’familiar put-down of cobwebbed laws).

He did not appeal to societal consensus (which if redescribed as “majoritarian” prejudice could play the villain of the piece).  He did not speak of “state interests” (which would distance the relevant benefits from real people, and which would be typecast as a menace to individual rights, and even human dignity).

Cooper was often interrupted in mid-sentence.  But he succeeded in putting on offer (in my words) the following proposition: gendered marriage laws are justified by the fact – the moral reality – that marriage is gendered.  Redefining marriage as genderless obviously changes the meaning of marriage across our society.  The “harm” of doing that is just the harm that it does to people’s opportunities to know, understand, and to participate in marriage as the gendered relationship that it truly is.

Cooper’s invitation to consider the moral reality of marriage had no takers.  Justice Scalia jumped to a discussion about possible harms to children adopted by same-sex couples.  The Chief Justice took over the theme.  But in his hands it morphed into a brief story about historical development (not about morality).  Justice Alito said that same-sex marriage might turn out to be a good thing, or a bad thing, depending upon further data.

The Justices’ striking moral reticence is confirmed, in a way, by the matter which dared not speak its name over these two days: religious liberty.  Nothing whatsoever was said about it, perhaps because dealing with the certain and certainly grave damage to religious freedom which same-sex marriage portends would only have added to the list of challenging moral questions.

Sometimes getting the meaning of the Constitution right depends upon the getting the answer to some difficult moral question right. This is true less often than liberals characteristically maintain, but more often than conservatives typically admit.  This is one of those occasions.  The correct answer to the central constitutional question posed in these cases – does equal protection require same-sex marriage? – depends upon the moral truth about marriage.

The oral arguments in Perry and (to a much lesser extent) in Windsor reveal a Court which is indeed standing over a “cliff,” looking into “uncharted waters.”  The missing ingredient is not, however, a body of social science data.  It is a strategically central moral judgment which the Court is obviously not going to undertake.  Very well, then: let the people, who operate under no similar felt moral constraint, decide the matter for themselves.

Recommended Citation: Gerard Bradley, Commentary: Over the cliff?, SCOTUSblog (Mar. 28, 2013, 10:24 AM),