This article first appeared in the St. Louis Beacon, Dec. 17, 2012 - The chances are that the U.S. Supreme Court will strike down the federal law discriminating against couples in same-sex marriages without giving gay marriage the kind of constitutional imprimatur that would require the entire nation to adopt it.
That is the view of many legal scholars in the wake of last week's decision by the court to hear two cases that raise the issue of same-sex marriage.
One case involves Edith Windsor, a widow from New York who ended up with a $363,000 estate tax bill she wouldn't have had it if her marriage partner had been a man rather than a woman. That case may be relatively easy. The court is likely to find that the Defense of Marriage Act (DOMA) -- the federal law that limits federal benefits to marriages between a man and a woman -- violates the 14th Amendment's promise of equal protection of the law.
The harder of the two cases comes from California. The question is whether Proposition 8 -- the popularly passed referendum that took back equal marriage rights that the California courts had granted -- violates equal protection. Most likely, experts say, the court will find a way to decide the case without forcing gay marriage upon the 45 states that currently ban it.
Preference for caution
Some legal experts even argue that it may be better for same-sex marriage -- and the court -- if the court does not impose same-sex marriage in one fell swoop.
Conventional legal wisdom has it that the Supreme Court's decision four decades ago to recognize a right to abortion caused a potent backlash that harmed the legalization of abortion more than it helped. Holding off on a sweeping same-sex marriage decision might be more helpful to same-sex marriage, these experts say, than adopting a sweeping decision that results in decades of push-back.
But other experts -- such as Linda Greenhouse, the former New York Times Supreme Court correspondent, and Mary Ziegler, a professor at Saint Louis University Law School -- challenge the conventional wisdom about abortion. They point out that even though 16 states had passed some form of abortion reform between 1967 and 1970, abortion reform bills were defeated in 12 states in the two years before Roe vs. Wade was decided in 1973. Missouri and Illinois were two of the 12 states.
In other words, strong political opposition to abortion already had developed in the years before Roe was decided, not because of it.
That said, the court is inclined by nature and by judicial philosophy to be cautious about imposing major social reforms before the nation is ready. An often repeated axiom is that the court should exercise judicial restraint and not reach out to decide an issue if it doesn't have to decide it.
Fear of overreach
Two examples of the court's reluctance to overreach on social issues are interracial marriage and homosexual sodomy.
Shortly after the court decided Brown vs. Board of Education, throwing out segregated public schools, it backed away from invalidating state laws criminalizing interracial marriage. Three-fifths of the states had anti-miscegenation laws at that point in the 1950s. A decade later, when the court threw out the laws as unconstitutional in the 1967 Loving vs. Virginia decision, 13 of the 29 states had repealed the laws, leaving 16.
Bruce La Pierre, a law professor at Washington University Law School, pointed out that the number of states that outlawed same sex sodomy decreased sharply between 1986, when the court ruled in Bowers vs. Hardwick that states could criminalize it, and 2003 when the court ruled in Lawrence vs. Texas that the Constitution forbade laws criminalizing private, homosexual sodomy.
"In Bowers vs. Hardwick (1986)," wrote La Pierre in an email, "the Supreme Court held that the 'federal Constitution [does not] confer a fundamental right upon homosexuals to engage in sodomy.' The Bowers court supported its decision in large part on the fact that in 1986, '24 states and the District of Columbia' provided 'criminal penalties for sodomy performed in private and between consenting adults.' Seventeen years later, in Lawrence vs. Texas (2003), the court overruled Bowers and struck down a Texas statute prohibiting same-sex sodomy. What had changed (in addition to the replacement of six of the justices in the Bowers court)? – '[t]he 25 states with laws prohibiting the relevant conduct . . . are now reduced to 13,' the court said.
"In controversial, hot-button, cultural issues, the Supreme Court, in short, does not lead -- it follows," wrote La Pierre. "Three members of the Lawrence majority who remain on the court (Anthony M. Kennedy, Ruth Bader Ginsburg and Stephen Breyer) were at some pains to deny in Lawrence that their decision would lead inexorably, and down some slippery slope, to a constitutional right to same-sex marriage. The votes of all three are probably necessary to find a new constitutional right to same-sex marriage, and one or more of these three, especially perhaps Justice Kennedy who wrote Lawrence, may well feel a tad constrained by their disclaimer in Lawrence. Until more than a small group of states have created a state-law right to same-sex marriage, I think that the court will leave the issue of same sex marriage to percolate in the political process of the individual states."
He concluded: "I would be surprised – to say the very least – if the Supreme Court has reached out to decide the California case to create a new substantive constitutional right to same-sex marriage."
Even though state laws on same-sex marriage and unions have been changing rapidly, 39 states still outlaw them. If the U.S. Supreme Court were to recognize a constitutional right to same-sex marriage, it would effectively require 45 states to change their marriage laws -- the 39 plus those states that allow same-sex unions but not marriages.
That is a much bigger number than the 16 states that still outlawed interracial marriage at the time of the Supreme Court’s Loving decision or the 13 states that still outlawed homosexual sodomy at the time of Lawrence in 2003.
Some legal scholars and ordinary citizens find this gradualist approach of those they call "consensus constitutionalists" to be infuriatingly untethered to justice and the words of the Constitution. Laws against interracial marriage were just as unjust and as much a violation of equal protection in the 1950s as the 1960s, they argue.
In addition, as Finley Peter Dunne’s fictional character, Mr. Dooley, once said, the Supreme Court “follows th’ iliction returns." The court certainly has noticed that a majority of voters today support same-sex marriage, whereas a majority of Americans opposed interracial marriage at the time of Loving in 1967.
Kennedy's central role
The key justice in the two cases will be Kennedy. He is the author of the Lawrence sodomy decision and also the author of a 1996 decision tossing out a Colorado referendum that had barred municipalities from passing laws to protect gays from housing discrimination.
Two things about the DOMA case are likely to appeal to Kennedy, legal scholars say. One is that it appeals to his libertarian instincts. The other is that he leans toward states rights and DOMA is a federal law that trumps state decisions.
Ziegler, from Saint Louis University, said, "Most people seems to think that the Defense of Marriage Act is more likely to be struck down because the arguments against it would appeal to Justice Kennedy on states rights and liberty.
"Kennedy has an eye out to his legacy and sees which way the winds are blowing," she added. "I would be surprise if he joined a sweeping decision against gay marriage."
The California case
Ziegler noted that the Supreme Court made a point of asking the parties to brief a procedural issue in the California case that could save the court from having to decide broadly that either same-sex marriage is constitutional or that it isn't protected by the Constitution. The procedural issue is whether the local officials appealing to uphold Prop 8 have the legal standing to do so.
Neither the governor nor the attorney general of California was willing to appeal a lower court ruling striking down Proposition 8. If the local officials do not have standing, then the lower court decision would stand but would have limited effect. It might only affect the couples who challenged the law. Or the state might order local officials to recognize same-sex marriage in California, but even then the decision would not have effect beyond the state borders.
Michael Wolff, former Missouri Supreme Court chief justice and a law professor at Saint Louis University, thinks this may be what happens. He wrote in an email:
"My prediction ... is that the DOMA case goes for the plaintiff widow, and in the Prop 8 case the court -- recognizing that the political process includes the decisions of the governor and attorney general of California not to appeal denies standing to the anti-gay-marriage bystanders. The attorney general did defend Prop 8 in the district court, but when the state lost, the AG refused to appeal, which she is empowered by her elective position to do. If California voters want to enforce Prop 8, they will have to start by electing different state officials, and good luck with that."
Another possible decision by the Supreme Court in the Prop 8 case that would stop short of constitutionalizing same-sex marriage would be to adopt the reasoning of Judge Stephen Reinhardt on the 9th U.S. Circuit Court of Appeals. Reinhardt said that once a state had recognized equal marriage rights for gays -- as the state supreme court had -- the voters could not take away those rights without violating equal protection. That holding is similar to the reasoning of Kennedy in the Colorado referendum on housing discrimination.
Level of scrutiny
One key to how the case turns out is how much constitutional scrutiny the court applies to Proposition 8. In general, the court has three levels of scrutiny -- rational, heightened and strict. Think of them as hurdles that a law has to get over to past constitutional muster.
Almost all laws get over the lowest bar of rationality. It requires only that a state law have a rational reason. But Proposition 8 did not clear that bar in Reinhardt's book.
A number of lawyers think that there is a rational basis for laws giving more protection to heterosexual marriage than gay marriage. This is it: Children are better off in stable two-parent households, so it makes sense for the state to advance heterosexual marriage because a man and a woman can have a baby, while a same-sex couple cannot.
If this argument clears the low bar of rationality, then the court will have to decide for the first time whether to give heightened constitutional protection in instances of discrimination based on sexual orientation, just as it does in cases involving sex discrimination.
One argument in favor of greater protection is that the court often provides such protection for groups that have been singled out by lawmakers for discriminatory treatment. On the other hand, Justice Antonin Scalia can be expected, based on his past decisions, to argue that the Constitution does not protect gays and lesbians because homosexuality was not protected by the Equal Protection clause when it was written after the Civil War and because it is not rooted in American history or tradition.