Belated good news for those of you who were disappointed in gay marriage’s victories at the polls on election day: Those victories may have inadvertently saved the prohibitions on gay marriage in other states.
Usually, the justices are inclined to vote to hear a case if they disagree with the lower court ruling. The most conservative justices — Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — almost certainly think the 9th Circuit’s ruling was dubious. Scalia, for example, says the “equal protection” clause, added to the Constitution after the Civil War, aimed to stop racial discrimination and nothing more. He often insists the justices are not authorized to give a contemporary interpretation to phrases such as “equal protection.”
If Chief Justice John G. Roberts Jr. joins the other three, the conservatives would have the needed four votes to hear the Proposition 8 case.
They may hesitate. To form a majority, they would need Kennedy, the author of the court’s two strongest gay rights rulings. His 2003 opinion struck down a Texas anti-sodomy law and said the state could not “demean” gays by treating them as second-class citizens. Five months later, the Massachusetts high court, citing Kennedy’s opinion, became the first to rule that gays and lesbians had a right to marry.
There are actually a bunch of cases they could vote to take up, from Prop 8 to various DOMA challenges. Kennedy has written not one but two landmark opinions on gay rights so it’s highly likely that he’ll vote with the Court’s liberals to form a majority if/when those issues finally land before them. In other words, how the Court will eventually rule is less of a mystery than whether they’ll choose to intervene in this subject at all; Friday’s vote on whether to grant cert and accept the cases is therefore momentous.
But wait. If you only need four votes to grant cert and if Kennedy’s opinion that the Equal Protection Clause protects gay marriage is all but assured, then why don’t the four liberals on the Court force the issue by voting to take the Prop 8 case? Answer: For the moment, it’s bad strategy. Ruth Bader Ginsburg, February 2012:
At the time of Roe v. Wade, abortion was legal on request in four states, allowed under limited circumstances in about 16 others, and outlawed under nearly all circumstances in the other states, including Texas – where the Roe case originated.
Alluding to the persisting bitter debate over abortion, Ginsburg said the justices of that era could have delayed hearing any case like Roe while the state-by-state process evolved. Alternatively, she said, they could have struck down just the Texas law, which allowed abortions only to save a mother’s life, without declaring a right to privacy that legalized the procedure nationwide.
“The court made a decision that made every abortion law in the country invalid, even the most liberal,” Ginsburg said. “We’ll never know whether I’m right or wrong … things might have turned out differently if the court had been more restrained.”
“It’s not that the judgment was wrong,” she said of Roe, “but it moved too far too fast.” Same logic here: If there’s momentum for your side of the issue at the polls, why risk igniting a backlash by taking it out of voters’ hands? The best thing gay-rights advocates can do to build popular acceptance of SSM is let it accrue democratic legitimacy. Some, in fact, have been warning Ted Olson and David Boies to knock it off with the court challenges for years in the interest of not judicially short-circuiting the process of public acceptance. If Maine, Maryland, Minnesota, and Washington had voted differently three weeks ago, those same advocates might have given up hope of winning at the polls and resigned themselves to court battles. Now, though, they know they can win — in some states. And the gay-rights supporters on the Court know it too. So maybe on Friday the conservative wing votes not to take the Prop 8 case because they suspect Kennedy will vote against them and maybe the liberal wing votes not to take the case because, following Ginsburg’s logic, they don’t want to taint SSM as something that was imposed by judicial fiat.
Two potential problems, though. First, the Ninth Circuit, which includes Idaho and Montana, has already ruled against Prop 8 and in favor of gay marriage, which means we’re already seeing federal appellate courts hand down pro-SSM rulings to districts that presumably trend anti. It’s true that the Ninth Circuit’s decision was written narrowly, restricted to California presumably in hopes that that would leave the Supreme Court more inclined not to overturn it, but a federal district court in the Circuit’s redder states might end up applying the case as precedent anyway. And even if they don’t, some other appellate circuit is bound to force SCOTUS’s hand eventually by issuing a more sweeping ruling on the subject. The Supremes can only hold back on this for so long before clarity from the top will be required. Second, at what point will “enough” democratic legitimacy accrue to SSM via victories at the polls before gay-rights advocates start pushing again for a constitutional ruling that will legalize it everywhere? Imagine if we end up with an even split among states, 25 apiece, with half banning gay marriage and half legalizing. A triumph of federalism! — except that, at that point, Olson and Boies or whoever’s leading the charge will go back to the Court and claim that gay marriage is now widely accepted enough as a basic right that the 25 holdout states should be compelled under the Equal Protection Clause to legalize it too. In other words, the “democratic” strategy is really just a way of building up the legal case long-term for judicially imposed SSM. In that case, maybe SSM opponents should hope that the Court takes it up now. If Kennedy does as expected and sides with the liberals, traditionalists will at least have a new milestone of judicial usurpation to point to as a rallying point for political mobilization. Good lord, the politics of this are convoluted.
Exit question: Say, is that Morgan Freeman?