The definition of marriage returns to the Supreme Court on Tuesday, only two years after the Justices decided two cases whose ambiguous reasoning created legal confusion on same-sex unions. This time, swing Justice Anthony Kennedy won’t be able to avoid the tension between his federalist and his individual-rights jurisprudence.
The 2013 rulings declined to overturn—explicitly, at least—those remaining state laws that limit the institution of marriage to one woman and one man, though their logic more or less instructed the appellate courts to do so. Four circuits have. But the Sixth Circuit Court of Appeals declined to go along, creating a split that the High Court may now resolve amid the continuing political debate about equality and social change.
Mores and opinion about gay marriage are moving at warp speed, in perhaps the fastest political transformation in U.S. history. State laws are rapidly evolving to reflect this shift. In the 37 states where same-sex unions are permitted, eight have passed laws and three approved gay marriage by popular referendum—and heavily Mormon Utah has reached a political accommodation on discrimination against gays that balances civil liberties and religious freedom.
PHOTO: JONATHAN ERNST/REUTERS
Broadly considered, the gay-rights movement is succeeding on its appeals to love and family values. Growing numbers of liberty-minded conservatives endorse a broader definition of marriage, and many Republican politicians would privately welcome a Court ruling that ended the question as a source of political controversy.
Our expectation—like most of the legal world’s—is that Justice Kennedy will provide the fifth vote to read a right to gay and lesbian unions into the Constitution under the Fourteenth Amendment. He has typically set aside his federalist principles in gay-rights cases.
Justice Antonin Scalia predicted most of this in his Windsor dissent two years ago, contrary to Chief Justice John Roberts who pretended the ruling put no thumb on the scales. And now even the conservative Justices will have to consider the practical impact of invalidating tens of thousands of gay marriages in dozens of states. Thousands of children are part of these gay families, and disrupting their lives by disallowing their parents’ marriages is not a welcome result.
Yet there is also a reason to worry about the consequences of the judiciary usurping the historic state power to define and regulate marriage. The Constitution never mentions marriage, not least because the Founders believed that social mores should be reflected in law through the democratic process, not judicial command.
As Sixth Circuit Judge Jeffrey Sutton put it in his carefully argued opinion in Obergefell v. Hodges, “This is a case about change—and how best to handle it under the United States Constitution. From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry, it is when and how that will happen.”
The plaintiffs are asking the Court to declare that equal protection of the law means that states have no rational basis to continue to adhere to the traditional definition of marriage. In other words, the beliefs that have prevailed across the West for most of human history amount to invidious bigotry. This means that until 2012 the bigots included President Obama.
But this legal assertion is belied by the very progress that gay rights have made in America. Discovering a fundamental right to same-sex marriage in the Constitution pre-empts the democratic process and assumes that the people aren’t capable of mediating their differences with decency and tolerance.
Such a decision would also raise questions about what comes next. If a relationship characterized by love and commitment becomes a Constitutional right to marry, then no state restriction can withstand judicial review. This applies to the number of people eligible to marry, the duration of the contract, and the nature of the individuals eligible to marry (age, degree of genetic relation and so forth). This is not meant as a parade of horribles, but it is a warning that the Court will find itself hearing many cases challenging any state regulation of marriage.
There may also be consequences for religious liberty if gay marriage becomes a right rather than a legal contract. Is it discrimination if a private institution such as a church or mosque recognizes only traditional matrimony within its private sphere? What about a religious college or adoption agency?
It is 2015, not 1954, and the Court would not be levering its prestige to topple invidious segregation a la Brown v. Board of Education. It would be trumping a political debate over changing social mores that our democracy is handling well. When in doubt, better to let judicial modesty and the wisdom of the people prevail.