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Should Supreme Court spur social change or follow it?

This article first appeared in the St. Louis Beacon:Should the U.S. Supreme Court pay attention to the elections or the opinion polls in deciding what the Constitution means?

Should the court be an engine of social change – as it was during the Warren Court of the 1950s and '60s – or should it avoid getting too far ahead of the American public?

What should that grand promise of “equal protection” mean?  What it meant in 1868 when it was written into the Constitution with the blood of hundreds of thousands of dead soldiers? Or 1954 when it first was found to prohibit racial segregation? Or 1967 when it finally ended the ban on interracial marriage?

Historic Supreme Court cases, like last year’s health-care decision and this year’s same-sex marriage cases, raise fundamental and enduring questions about the proper role of the court in interpreting the Constitution and influencing social change.

The court’s decisions are supposed to be based on the law, not politics.  The court is supposed to find the rights in the text of the Constitution, not invent new rights.  It is supposed to show self-restraint and not to reach out to answer constitutional questions that it need not answer.

Still, legal scholars often praise the court when it acts strategically, as Chief Justice John G. Roberts did last year in upholding President Barack Obama’s health-care law.  By joining the justices appointed by Democratic presidents, the chief justice avoided a court split along partisan lines and also avoided striking down the biggest social welfare program passed under a Democratic president in half a century. 

Both of those results were widely viewed as good for the court’s standing. But people might ask how different these praiseworthy strategic calculations are from political ones.

Michael A. Wolff, the former chief justice of the Missouri Supreme Court and now dean of Saint Louis University law school, was asked the difference between political and strategic calculations. He candidly replied: “I can make only one distinction:  One sounds better than the other.”

Shadow of Roe

Even 40 years distant, Roe vs. Wade casts a long shadow over the role of the court in connection with social change. It heavily influences the political and strategic calculus about whether the Supreme Court would be premature if it were to constitutionalize  same-sex marriage and toss out the laws in 40 states.

Justice Ruth Bader Ginsburg, one of the court’s leading liberals, has said in recent years that even though she agreed with Roe’s judgment legalizing abortion, the court had “moved too far too fast….The legislatures all over the United States were moving on this question,” she said. "The Supreme Court’s decision was a perfect rallying point for people who disagreed with the notion that it should be a woman’s choice. They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges.”

Wolff is blunt in his assessment of the politics. He wrote in an email: “If I were a truly prescient Republican operative in 1973 (believe me, I was neither) I would have been overjoyed by Roe.  It was the gift that kept on giving... and it was important that Roe be in play year after year, but never overruled. Roe, and its cousins, Brown vs. Board and Miranda, et al., facilitated a significant shift toward the GOP that began with the law and order campaign of (Richard) Nixon in ‘68 (Southern strategy) and hit hyperspeed with (Ronald) Reagan's playing of the religious right.

“If I were a truly prescient Democratic strategist today (I confess only to the D part), I would want the court to…uphold DOMA and let the electoral games continue. If a political party is on the wrong side of history, let them keep voting wrong, I would say.  Let the Republicans in the House keep voting and maneuvering to keep DOMA for years and years while their base gradually dies off and is replaced by young people who will have nothing to do with them.”

Not everyone buys the conventional wisdom that Roe froze advances in state legislatures and ended up hurting the cause of abortion rights by triggering a potent political backlash.

Linda Greenhouse, the former New York Times Supreme Court reporter, has published research showing that opposition to abortion laws began before Roe and that the decision was not responsible for the divisiveness that followed.

Mary Ziegler, a professor at Saint Louis University law school, agrees with Greenhouse.  “Progress in the state legislatures had stalled by the early 1970s, and the pro-choice movement had suffered setbacks in Michigan and in New York. So it's not clear that the states would have liberalized abortion laws without the court's intervention.”               

No harm

Gregory P. Magarian, a law professor at Washington University, argues that that same-sex marriage does not have the same potential to divide society as did abortion because same-sex marriage does not harm anyone.

“I don’t think arguments against legalized abortion would have gone away in the absence of Roe,” he wrote in an email.  “Even if Roe had a substantial backlash effect, abortion bans can be defended (not successfully, in my view, but with some force) under the harm principle. The arguments against same-sex marriage, in contrast, have largely lost their currency across a wide swath of political opinion, in part because of the implausibility of third-party harm arguments.”

Still Magarian thinks the court will be careful not to get out too far in front of the public. “I don’t think the court wants to paint a target on its back. At this moment, (same-sex marriage) is still a controversial issue. In 10 years it won’t be; opponents will be utterly marginalized. Tens of thousands of couples will marry in California, more states will keep legalizing SSM, and in 10 years or so the court will issue a…decision that mops up the holdouts.”

Magarian thinks the court will use procedural issues to throw out Proposition 8 in California. That will end the ban on same-sex marriage in California without a decision mandating that all the states legalize same-sex marriage. 

“Punting Prop 8 while booting DOMA looks ‘moderate’ given the available options, puts the court more on the right than the wrong side of what every fool by now can tell is history, and avoids constitutionalizing the marriage right, which would animate the anti-SSM zealots.”

David Roland, director of the libertarian Freedom Center of Missouri, agreed “the court does like to move slowly on what they perceive to be ‘big’ issues -- even if the writing is on the wall.  While I agree with you that the court should not be influenced by public perception, it is not uncommon for the justices to ease issues along until they feel like the public will support (or at least tolerate) a particular result.”

Wolff added wryly, “I remember when passage of the ERA was inevitable. I do not think the two situations are analogous, but we must be careful with the concept of inevitability.”

Still, Magarian pointed out how quickly the law and popular opinion has changed on same-sex marriage. “Think about this,” he wrote. “Less than 20 years ago, Paul Wellstone, the most left-wing member of the Senate, voted for DOMA.  Today, Dick Cheney, who stands slightly to the right of Genghis Khan, wants to see same-sex marriage legalized.  We live in interesting times.”

When is equal protection equal?

One of the hottest exchanges during the two days of oral arguments on same-sex marriage came Tuesday when Justice Antonin Scalia demanded that Theodore Olson, the renowned conservative lawyer, tell him exactly when the equal protection clause of the Constitution came to protect same-sex marriage.

He asked: "I’m curious. When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted? When did the law become this?"

Olson responded: "May I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriage?  When did it become unconstitutional to assign children to separate schools? … It was constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control."

Scalia: "I see. When did that happen? When did that happen?"

Olson: "There's no specific date in time. This is an evolutionary cycle."

Scalia: "Well, how am I supposed to know how to decide a case, then, if you can't give me a date when the Constitution changes?"

Scalia and Olson were engaging in an age-old debate about what the Constitution means and the proper role of the court in interpreting it.  Scalia believes that the Constitution is “dead.” It means what is said when it was written.  Others, such as the late Justice William J. Brennan Jr., spoke of a living Constitution that evolves with the times.

The equal protection clause, added to the Constitution as a result of the Civil War, is a particularly good prism for understanding the debate.

When the 14th Amendment was ratified, no one would have said that equal protection included gays and lesbians.   

But then again, no one thought it protected women either.  And it took about a century before those words ended segregation in 1954 and struck down laws against interracial marriage in 1967.

Hence Olson’s attempt to reframe the question to show that equal protection had an evolving meaning that now encompasses gays and lesbians.

Federalism or rights

After Wednesday’s argument, it appeared possible that the court would strike down the DOMA but would do it on the federalism grounds favored by swing Justice Anthony M. Kennedy rather than the individual rights and equal protection grounds favored by the four Democratically appointed justices.

That could lead to an interesting irony. The Obama administration could end up winning both last year’s health law argument and this year’s DOMA argument but for different reasons that it emphasized. 

Last year, the majority of the court ruled that Congress’ commerce power did not permit the government to force people to buy a product they did not want – in that case health care.  This year, the court could rule that Congress doesn’t have power to define marriage because that is the province of the states.

In other words, both Obama victories could have the conservative impact of limiting federal power and protecting state prerogatives. 

There also is certain to be a mess if DOMA is thrown out.  Such a decision would give equal marriage rights to those in the nine states and the District of Columbia that have recognized same-sex marriage, but would do nothing to help same-sex partners in states with civil unions or in states that bar same-sex marriage.

What if a couple in Missouri or Illinois decided to go to Iowa or Massachusetts to get married legally? With DOMA gone, would they then qualify for the federal benefits that go to married couples?

Ziegler said that if they actually move and take up residence in Iowa or Massachusetts, they probably would qualify.  “If not, then the question gets much harder. Absent a new federal law clarifying the answer to this, a post DOMA world will be a mess,” she wrote. “The issue would be which state's law applies.”

Missouri would probably argue that its law applies and therefore the couple that went to Iowa to get married would not get federal benefits.

“Some scholars have argued that marriages can be valid for some purposes (like eligibility for federal benefits) and not for others (like state recognition).” she wrote.  “The short answer is that the true answer is far from clear.”

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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