It is easy to believe now that in a short period of time same-sex marriage will be legal throughout the United States. The Supreme Court’s decision in United States v. Windsor, striking down the Defense of Marriage Act (DOMA), followed by the recent decision by the federal District Court in Utah, Kitchen v. Herbert, holding that Utah’s prohibitions of same-sex marriage are unconstitutional, may make it seem inevitable that federal courts throughout the country will eliminate all barriers to same-sex marriage. That view, however, puts too much faith in the idea that our courts – particularly the Supreme Court – are governed by logic and precedent. They are not. Admittedly, they are influenced by logic and precedent. We might even say they are constrained by those factors. But they are political institutions. There is no guarantee that they will resist popular sentiment in states where legislators and voters oppose same-sex marriage.
The Supreme Court decided two same-sex marriage cases in June 2013. In United States v. Windsor, the court held that the federal government may not constitutionally refuse to recognize marriages that are recognized by the states. That practice improperly demeaned married same-sex couples, violating their due process rights, the court held. Justice Kennedy wrote, “DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects … and whose relationship the State has sought to dignify.”
But the court in Windsor did not quite go so far as to say that state laws that prohibit same-sex marriages are unconstitutional. And in the second case it decided in June, Hollingsworth v. Perry, the Supreme Court refused the opportunity. Hollingsworth involved a decision by the District Court in northern California holding that California’s Proposition 8, outlawing same-sex marriage, is unconstitutional. The Supreme Court could have taken up that case and decided the issue – does the Constitution prohibit laws that outlaw same-sex marriage? – but the Court chose to avoid the issue. It ruled instead that the appellants, proponents of Proposition 8, did not have standing to appeal.
It is easy to believe that the Windsor opinion is the writing on the wall. Justice Scalia, in his dissent in Windsor, said as much. He wrote that the Windsor opinion can be distinguished by lower courts considering same-sex marriage cases, and urged the courts to “distinguish away.” But, he wrote, “In my opinion … the view that this Court [the Supreme Court] will take of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare … desire to harm’ couples in same-sex marriages …. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”
The decision by the United States District Court in Utah, holding that Utah’s prohibitions against same-sex marriage are unconstitutional, makes the impression even stronger. It’s Utah! If same-sex marriage is legal in Utah, surely it will be legal everywhere.
Furthermore, Judge Robert Shelby’s decision in the Utah case is very well done, tightly-reasoned, logical and convincing. If anything, it’s restrained: the court shows how it could have gone much farther in its analysis, but did not.
And liberal commentators love the idea that Justice Scalia’s parade-of-horribles prediction in his dissent in Windsor is being used to promote the cause of same-sex marriage.
But, in fact, all lower federal courts will not find that there is a constitutional right to same-sex marriage. And there is no guarantee that the Supreme Court will come out that way, if and when it addresses the issue. The Supreme Court is above all a political institution. Anyone who doubts that should remember Bush v. Gore.
The court signaled clearly in June how far it was willing to go. The court did what it didn’t have to do in Windsor to find that there was standing to bring an appeal, allowing it to decide that the federal government cannot interfere with state decisions about marriage. And it didn’t do what it could have done in Hollingsworth, finding that there was no standing to bring an appeal, allowing it to avoid the question of whether a state can prohibit same-sex marriage. The impression left by those decisions is that the court wants to see how things develop before it takes a further step. It was not ready in June to hold that there is a constitutional right to same-sex marriage. It may not be ready for quite some time. It may simply refuse to take any such case. Or, if it takes a same-sex marriage case, a five-justice majority may rule that Windsor means only that the matter is left up to the states and the federal government may not refuse to recognize a marriage that is legal under state law. The strong language in Windsor praising same-sex relationships makes it seem that laws against same-sex marriage cannot be upheld. But we will see what actually happens in time. There is no power that can require the Court to act consistently or logically.
There are people who think support of same-sex marriage will be stronger if legalization is won in state legislatures, or from voters, rather than imposed by courts. The comparison is made with Roe v. Wade and abortion rights. The Supreme Court ruled in Roe v. Wade that there is a constitutional right to abortion, but in many places the right cannot be exercised as a practical matter. It might have been better, the argument goes, if the decision was left to the democratic process. The Justices of the Supreme Court – or Justice Kennedy, to put it more precisely – may adopt that reasoning and may stop before finding in the Constitution a right to same-sex marriage. It’s easy to say that questions of this kind should be left to voters and their representatives — unless your rights are at issue and the democratic majority wants to suppress them.
In addition, there is further work that needs to be done to strengthen the arguments for same-sex marriage. We scoff at those who say that if same-sex marriage must be allowed, then bigamy must be allowed, and polygamy. We scoff, but why exactly is that wrong? There needs to be a thoughtful explanation of why the reasoning that supports a constitutional right to same-sex marriage does not also support a right to a bigamous marriage, or a polygamous marriage. The argument is ready to be made, but it has not yet entered mainstream discourse.
According to the decision in the Utah case, and taking that decision into account, there are now seven states for which court decisions have legalized same-sex marriage (California, Connecticut, Iowa, Massachusetts, New Jersey, New Mexico and Utah); eight states have passed same-sex marriage legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island and Vermont); and three states have legalized same-sex marriage through a popular vote (Maine, Maryland and Washington). The remaining 32 states all have a constitutional amendment or statute that prohibits same-sex marriage.
If the restrictions against same-sex marriage are not struck down by judicial decisions, they can be brought to an end only by a slugfest through the democratic process at the state level, state by state. There is no guarantee which side will win such struggles. Again, if we look at abortion rights, the situation in many states cannot be said to be promising. The proponents of same-sex marriage have come a long, long way – incredibly far in a very short space of time. But there is a very good chance that there are hard battles to come. The federal courts may not by themselves make same-sex marriage the law of the land.
Paul Strauss is Co-Director of Litigation at the Chicago Lawyers’ Committee for Civil Rights. He has spent 30 years litigating for plaintiffs in civil rights cases.
[Disclosure: Strauss is the father of TPM reporter Daniel Strauss.]