WASHINGTON, DC — With the justices of the Supreme Court considering how they will rule in the pair of separate cases concerning the question of gay marriage, a word of caution has been raised in some activist quarters that support marriage equality, counseling caution in trying to predict which way the high court will rule.
Although the justices may decide that the Defense of Marriage Act (DOMA), the federal law that defines marriage as the union of a man and a woman, some of them indicated during the two days of oral arguments that further judicial intervention may be unnecessary since the democratic process appears to be playing out on its own, with ballot victories for same-sex marriage and a swelling of popular support in its favor.
Could the movement for LGBT rights become a victim of its own political success? That question was hanging over Wednesday’s arguments in the case (United States v. Windsor) concerning the constitutionality of DOMA.
Chief Justice John Roberts, Jr. asked the attorney for the pro-equality side, “You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?”
Roberta Kaplan, the attorney, replied that for the purposes of the law, “I would, your honor.”
“Really?” Roberts shot back. “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
Although Kaplan had just argued that “there has been a sea change” in American popular attitudes towards “the understanding of gay people and their relationships,” she then argued that, despite that newfound understanding from heterosexual Americans, gay men and women remain the targets of discrimination.
“No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have,” Kaplan argued.
But Paul Clement, a former Solicitor General under George W. Bush who represents the anti-equality side, jumped on the subject, applauding the democratic process and arguing that the rising tide of support for marriage equality was reason enough for the Supreme Court to sidestep the issue. “The reason there has been a sea change,” said Clement, “is a combination of political power, as defined by this court’s cases as getting the attention of lawmakers; certainly they have that. But it’s also persuasion. That’s what the democratic process requires. You have to persuade somebody you’re right.”
Clement’s argument was anticipated the previous day, during oral arguments in the other marriage equality case the justices heard, Hollingsworth v. Perry, which is seeking to overturn Proposition 8, the 2008 voter-approved law that prohibits gay marriage in California.
Charles J. Cooper, a lawyer representing marriage equality opponents, told the high court on Tuesday, “We would submit to you that that question is properly decided by the people themselves.”
The court has always been sensitive to public opinion, with the justices often debating the evolving national standards, and how much these changes should influence their interpretation of the United States’ 223-year-old Constitution.
The question of political power is also important, as the justices determine what standard they will use in ruling whether DOMA and Proposition 8 are unconstitutional. LGBT activists want a “heightened scrutiny” standard—meaning the law must be substantially related to an important government interest—similar to the one applied in gender discrimination cases.
The test of that scrutiny includes the history of discrimination against the group and its political power relative to the rest of society. Although gay men and women have a history of discrimination, the group’s political power is rising.
In the case of gay marriage, the conventional wisdom has shifted so rapidly that the justices may be leery of forcing the issue from the bench. Since 1996, the year DOMA was enacted, public opposition to marriage equality has reversed into public support.
On the other hand, approximately 40 states prohibit same-sex marriage, with most having voter-approved constitutional bans. It was last November when the first state referendums approving same-sex marriage were passed.
Justice Anthony Kennedy, who is widely viewed as the court’s deciding vote, has a history of supporting the states’ authority in setting their own policies. During the oral arguments, he expressed skepticism that the high court should issue a broad ruling in the Hollingsworth case, which was heard on Tuesday, as a means for introducing a national right to gay marriage. Kennedy did, however, question DOMA’s constitutionality.
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