This artist rendering shows Roberta Kaplan, attorney for plaintiff Edith Windsor, addressing the Supreme Court, Wednesday, March 27, 2013, as the court heard arguments on the Defense of Marriage Act. (AP Photo/Dana Verkouteren)
The talking heads and legal commentators seem to more or less agree on the likely outcomes of the two marriage equality cases argued in front of the Supreme Court this week: It’s too soon for the Court to go all the way and declare same-sex marriage legal in all fifty states, so they’ll punt on the issue. For Hollingsworth v. Perry, the case brought by two California couples challenging Proposition 8, their state’s ban on same-sex marriage, that means declining to issue a broad ruling on marriage equality. The Court could rule in favor of the same-sex couples who challenged Proposition 8, but apply the decision either only to California or only to the states that already extend civil rights benefits to same sex couples; it could also rule that the petitioners lack legal standing to bring the case to the Court. For the case argued on Wednesday, which centers on one section of the Defense of Marriage Act (DOMA) pertaining to federal benefits for same-sex spouses, the Court could strike down only the challenged section without requiring any states to recognize same-sex marriage, or could also decline to rule because of lack of standing.
With 58 percent of the American public now favoring marriage rights for same-sex couples and an increasing number of states recognizing same-sex marriages, the Supreme Court justices evaluating these cases must be acutely aware of their legacies and the historical import of this issue. The right to marry someone of the same sex is the most visible civil rights issue of the past decade. So why are even liberal-minded people encouraging the Court to wait it out?
Numerous commentators, most notably at The New York Times, have expressed concern that a broad ruling on marriage equality could turn into the next Roe v. Wade, igniting decades-long culture wars and damaging public perception of the Supreme Court. Better to rule narrowly, they say, and let the states follow the emerging trajectory towards marriage equality.
That argument, though, is not only totally ahistorical, but dangerous for both civil rights and the Court’s credibility.
Contrary to the current mythology, Roe didn’t incite the culture wars, and before the case was decided in 1973, the right to abortion across the fifty states was far from a foregone conclusion. As Linda Greenhouse and Reva B. Siegel detail in their book Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling, an organized, primarily Catholic Church–backed anti-abortion movement existed in force before Roe. Although abortion rights were initially championed by Republicans and favored by a majority of Americans, social conservatives saw an opening to exploit for political gain. According to Greenhouse, before the Court decided Roe, conservative architects of the “New Right” had already decided to use opposition to abortion as part of a strategy for party realignment that would come to fruition with the election of Ronald Reagan in 1980. “New Right” leaders sought to bring Catholics and into the party and politicize Evangelicals to form a coalition of traditionalists based on hostility to progress and change.
Abortion was hardly their only issue. The new conservative coalition opposed the Equal Rights Amendment, claiming that gender equality would destroy the family and send our daughters to war. They stoked white voters’ fears of full racial integration with racist tropes about black criminals and welfare queens. Those narratives and appeals to tradition continue today, with social conservatives hoping for a return to a gauzy vision of Good Old Days America before the social upheavals of the 1960s and ’70s—and before women, people of color, religious minorities and other marginalized groups were able to secure a full range of rights.
A different ruling in Roe—or none at all—wouldn’t have prevented a Republican Party realignment that was already underway. It wouldn’t have prevented abortion, and the rights of women and other traditionally disempowered groups, from becoming controversial political issues. But a Roe-free United States would almost certainly mean a United States wherein abortion laws were wildly varied, with women in many parts of the country having no legal right to abortion at all. Similarly, even though Brown v. Board of Education inspired an immediate backlash from Southern racists, it’s tough to argue that without court intervention, racial integration of public schools and other facilities would be better without Brown than the (admittedly lacking) state of racial equality today.
Perhaps the fundamental question is: Is securing civil rights through the courts worth the backlash? Or is it better for marginalized groups to push for their rights incrementally, avoid the glare of national politics and hash things out at the state level?
For the Supreme Court justices, the backlash should be worth it. Anything less damages the Court’s credibility and legitimacy. Why? Because fundamental rights are fundamental rights—not up for debate or majority rule. One of the reasons we have a High Court tasked with evaluating constitutional questions is because our most essential rights are not up for a vote. Our country shouldn’t be a quilt of laws where your constitutional rights and liberties shift as you cross state lines.
The credibility of the Court is particularly high-stakes in the marriage equality cases. The Court has ruled on marriage rights numerous times, proclaiming marriage to be a “fundamental right” and “the most important relation in life.” It has held that the right to marry is protected by the Due Process clause of the US Constitution, and that marriage is fundamental to the point of being sacred. The Court has never limited marriage only to couples that are willing or able to procreate, and all fifty states recognize marriages between elderly couples or couples with fertility issues—poking holes in the argument that marriage is purposed for procreation, a position taken by opponents of marriage equality. The Supreme Court has ruled that laws limiting interracial marriage are unconstitutional, even though such marriages, in the context of American history, are decidedly nontraditional. In the many cases the Court has evaluated, it has repeatedly extolled the importance of marriage rights, warned that limiting those rights requires an awfully good reason, and maintained the Fourteenth Amendment precept that the state may not “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Opponents of marriage equality are strong in their bluster but weak on the legal merits. When arguing in support of Proposition 8 in the Ninth Circuit court they had a difficult time highlighting any rational state interest in limiting marriage to heterosexual couples, and they’re not faring much better in Washington, DC. Marriage as a venue for “responsible procreation” seems to be the best they can come up with, despite the fact that about half of US pregnancies now happen out of wedlock, marriage has never been limited to only fertile heterosexual couples and there are plenty of same-sex couples whose children remain in social and legal limbo because their parents’ union remains unrecognized. In fact, the Court has ruled that it’s a constitutional right for married couples to use contraception in order to avoid procreation.
If it’s possible to come up with a legally tenable, rational justification for limiting marriage to heterosexual couples, I haven’t seen it in this case or elsewhere. The underlying animus to marriage equality is simply an animus to gay, lesbian and bisexual people. And while individual Americans have a right to their prejudices and moral beliefs, they don’t have a right to legislate those prejudices.
Part of the function of our court system is to step in and protect the rights of minorities from the punitive impulses of the majority. Punting on the most salient civil rights issue of the day won’t make the Court look reasonable; it’ll make it look cowardly. Most Americans believe that the role of the Supreme Court isn’t to make law but to correctly interpret existing law within the scope of black-letter statutes and legal precedent. Most Americans also recognize that discrimination is wrong and “separate but equal” isn’t really equal; they also expect the Supreme Court to be at the forefront of knocking down unjust laws, ahistorical as that view may be. Americans would not view dodging the national issue with a narrow ruling—only addressing federal benefits in the DOMA case, deciding petitioners don’t have standing in the Prop 8 case—as a rational Judgment of Solomon; they would see it as a cop-out at best, and even a transgression against the Court’s most fundamental and valuable purpose.
For all the fear-mongering that the marriage cases could be the new Roe, it’s worth noting that they could also be the new Plessy v. Ferguson. That case upheld racial discrimination under a “separate but equal” framework, and remains a dark stain on the Court’s history, and America’s. There’s not just a danger in doing too much too soon; there’s a much greater danger in doing too little, too late.
After all, this isn’t just an academic question or a matter of political strategy. It’s a civil rights issue that impacts real people, today. Here, the comparison to Roe is apt: For all the push-back and the political fights and the rallying of a conservative GOP base, a country without Roe would almost surely not be a better place for women.
Abortion is far from universally available and accessible, but without Roe on the books, women in vast swaths of the United States would likely have no legal right to abortion; even women in more moderate and liberal states would face a patchwork of laws, subject to shifting political power and mores. Just look at the abortion battles raging on a state level today—anti-choice forces work overtime to scale back abortion rights in every state in the nation. Without Roe, the religious right wouldn’t shrug its shoulders and admit defeat when state legislatures voted to secure abortion rights in 1980 or 1995 or 2013 any more than it did in 1970. And as in the pre-Roe era, the result would be that women, depending on their economic status and location, would have a “choice” between expensive and difficult travel to secure an abortion; a dangerous illegal abortion; or no abortion at all and the attendant financial, emotional and personal consequences of being legally compelled to carry a pregnancy to term when you desperately need not to.
While no Roe may save some politicians and political commentators the annoyance of having to focus on the abortion issue during presidential elections and Supreme Court appointments, as one of the people whose rights would be on the no-Roe chopping block, I’ll take political inconvenience over legal intrusions into my most basic human rights.
The Supreme Court has opted to avoid controversy and leave civil rights issues to the states before. It’s been a lesson in disaster. Waiting for public opinion to change before affirming the fundamental constitutional rights of a minority group makes a mockery of the entire concept of fundamental constitutional rights. And when it comes to marriage equality, public opinion already has shifted, with a majority of Americans favoring same-sex marriage rights. If the Supreme Court requires a super-majority of the public to support a constitutional right before they’ll affirm it as such, why do we need a Supreme Court that evaluates constitutional rights?
Commentators and observers seem more or less convinced that the Court will take the least controversial path here, invalidating only the clause of DOMA currently at issue and claiming lack of standing to get out of making a real decision on Prop 8. I hope they’re wrong. I hope we have a Supreme Court willing to directly address the highest-profile manifestation of legal inequality today, striking down DOMA and Prop 8 and declaring, again, that marriage is a fundamental right—and that same-sex couples can’t be excluded from it.
A more tepid decision wouldn’t just hurt same-sex couples—although make no mistake, a failure to affirm nation-wide same-sex marriage rights will in fact hurt LGBT people, their families and their loved ones, serving as a reminder from the highest court in the land that maintaining stark inequality is an acceptable trade-off for not rocking the boat. But it’ll also hurt the Court. Cowardice doesn’t beget deference or respect, and a court that won’t strike down a clearly unconstitutional law is a court that isn’t doing its job.
All nine Justices know that the marriage cases are ones for the history books. Tonight, they’re likely thinking about what side of history they’re about to come down on. They should ask themselves: Does history look kindly upon those who, when presented with important challenges, took the path of least resistance?