PLANK DECEMBER 12, 2012
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Dear Supreme Court Justices,
Last week, you agreed to hear two landmark cases about gay marriage. In the broader of the two cases, which comes out of California, you could establish same-sex marriage nationwide as a matter of constitutional right. This is a ruling that most gay Americans would celebrate as a historic victory for civil rights. But I want to suggest that you make history, and advance the cause of gay equality, in a different way: by butting out.
I bow to no one in my support for marriage equality. I have been fighting for it since 1996, when the cause seemed crazy and only the courts offered any hope at all. As part of that fight, the hardest thing I have done is to counsel my gay friends and allies that litigation was necessary, but that real civil rights—durable, deeply rooted civil rights, as opposed to what James Madison called “parchment barriers”—come from consensus, not from courts.
That was true in the African-American civil rights battle. The Supreme Court’s ruling in Brown v. Board of Education was only the beginning of the real struggle to end segregation and establish equality; the work of mobilizing the public’s conscience took place in the streets of Selma and the church pulpits and the halls of the Congress, culminating in the hard-won civil rights bills of the 1960s.
The importance of consensus is even greater in the fight for marriage, because of the very nature of what we are seeking. Marriage isn’t like voting, which you either can do or you can’t. Marriage takes place not just in the eyes of the law but in the eyes of one’s community. Its unique strength is its ability to fortify, not just ratify, the bond that creates family; and that ability comes from the web of social expectations and support that the community brings to the marriage. Every time someone at work asks how your spouse is, or congratulates you on an anniversary, society is reminding you of its stake in your nuptial promise.
Gay Americans are now, at long last, winning the battle for marriage equality where it counts: in the hearts and minds of our straight fellow citizens. Only recently, polls began showing a narrow majority of the public supporting same-sex marriage. That trend broke through into politics in 2012, our annus mirabilis. The president and the Democrats embraced gay marriage after years of opposing it; so did some of the country’s leading conservative thinkers.
Then the most breathtaking development of all. Until this year, gay-marriage proponents lost in every state referendum where they made their case to the voters. Last month, the tide turned; we won four out of four. Perhaps equally significant, in three of the four cases what we won by plebiscite was marriage itself—not merely the right to keep asking for marriage (by defeating a constitutional ban).
Those victories were in blue states. Hard battles remain ahead. So why not preempt them with a Supreme Court decision ordering marriage equality as a federal constitutional right?
One reason is that the country is still about 50-50 on gay marriage, and the cause might be set back, perhaps by by decades, if nine (actually, five) bureaucrats in black robes sweep in and take the issue out of the people’s hands. Even if gays are on the right side of the argument about marriage, we will land on the wrong side of the argument for democratic sovereignty—a bigger, tougher fight, and a fight we do not need to pick.
But what if, as many of my friends say, the age of anti-gay backlash is past? What if a Court decision writing gay marriage into the Constitution were met without a murmur of populist anger? Frankly, it would still be a bad idea, and bad, above all, for gays.
Here is a movie plot you have never seen and never will see: a disadvantaged athlete struggles against the odds, makes it to the Olympics by sheer force of grit and talent, and is ahead in the race for gold—when, with the finish line in sight, the referee calls off the competition, hands the hero a medal, and everybody goes home.
Gay Americans are in sight of winning marriage not merely as a gift of five referees but in public competition against the all the arguments and money our opponents can throw at us. A Supreme Court intervention now would deprive us of that victory. Our right to marry would never enjoy the deep legitimacy that only a popular mandate can bring.
I tell my gay friends: imagine if the Supreme Court had ordered gay marriage this past June, at the end of its 2011-2012 term. November’s game-changing electoral victories would never have happened. Gay marriage advocates would be forever stereotyped as political losers who won by running to mommy. Our opponents would mock and denigrate our marriages as court-created, legalistic fictions. The country would never have shown how much it has changed.
If we have come that far in five years, imagine where we might be in five more. Imagine, then, the opportunities to extend and consolidate support that we will lose if the Supreme Court steps in now. Strange but true: a favorable Supreme Court intervention next year would make us weaker, not stronger.
I think it would be fine, politically and legally, for the Court to knock down the Defense of Marriage Act’s ban on federal recognition of states’ same-sex marriages. That is the lesser of the two big cases which the Court agreed to hear. Frankly, the stakes are not all that high. However you rule, in a few years DOMA will be repealed. The federal government’s usurpation of states’ traditional power to regulate marriage serves no purpose except to be mean to gay couples, by denying same-sex spouses crucial things like inheritance and immigration rights. (It is quite hard to be in the hospital room with your spouse if you can’t even get into the country.)
Overturning DOMA, however, would allow the consensus-building process to continue. Imposing gay marriage by fiat (especially in a five-four decision) would halt or reverse it. In that respect, the California marriage case and the DOMA case could not be more different.
In the California marriage case, you certainly don’t lack for options. You could give gay-marriage opponents a home run, foreclosing gay couples’ constitutional claim for decades to come—a tragic setback, from a gay point of view. You could give gay-marriage supporters a home run, as a California district court did. You could uphold the narrower opinion of the Ninth Circuit federal appeals court, which overturned California’s ban on gay marriage but would have no practical effect in other states.
Or you could do something you hinted at in your decision to take the case, when you asked to be briefed on whether the parties have standing to sue. That is, you could rule that the case was improperly brought and isn’t ripe for any kind of ruling. Though the precise legal consequences would depend on how you wrote the fine print, the basic effect would be to defer the constitutional battle over gay marriage until a later day.
That day will come. We can even guess when. In 1948, California’s supreme court overturned the state’s ban on interracial marriage. It took the U.S. Supreme Court 19 years to affirm and nationalize that ruling, and by then the decision wasn’t controversial. In 1993, Congress banned openly gay people from serving in the U.S. armed forces. It took the courts and Congress 17 years to repeal that ban, and by then the decision wasn’t controversial. You see the pattern. Massachusetts enacted gay marriage in 2004. If the past is prologue, by the early 2020s the country will have reached a consensus on same-sex marriage.
Believe me, I know the cost of waiting. My husband and I are married in the District of Columbia but live in Virginia, which does not recognize our marriage. Every time I commute home from my office in D.C., I am magically divorced. I like to joke that I have every straight man’s dream: I’m married at work and single at home. In truth, however, I’m not laughing. Hovering in legal limbo is demeaning and disruptive. In an ideal world, today’s moment of political and generational transition would be unnecessary.
But the world is not ideal. Wise judges know there is a time for leadership, a time for followership, and a time to sit it out. If you go with a narrow decision or punt, you will give us the time we need to win our argument, not just our case.
15 comments
Seriously? The idea that Loving v. Virginia wasn't controversial or that the end of DADT didn't face serious opposition is a perversion of the historical record. When things are seriously uncontroversial, you don't need the courts to mandate civil rights in all states. I don't see gay marriage getting extended to at least half of the states in the country any time soon, since the Republican Party is simply not set up for this and their old white base elects rabid partisans to state legislative office. DOMA repeal, yes, but of course you have the House Republicans on record fielding the arguments for its defence in court. But nationwide legal equality? Mississippi only ratified the amendment banning slavery in 1995.
- chaitless
December 12, 2012 at 1:36am
I have never understood this argument. Legislation represents workable consensus on policy, and the demos gets to weigh in by electing the representatives who create the legislation. Fundamental constitutional rights are an entirely different matter. Whether you believe that such rights are granted by the Constitution or, as Judge Posner argues, by the courts, they are not subject to the whims of the voting public. It's lovely that some states have had popular referenda on the issue, but I don't think the matter should be put up to a vote. A fundamental right has to be recognized, and I hope that the marriage cases will result in such an outcome.
- mwittenphd
December 12, 2012 at 11:25am
This is glib, blue-state urbanism talking. That legal irony that you cycle through daily might be a little less ironic, and more onerous, if one of you becomes deathly ill. Or if one of you is injured in a car wreck travelling through Mississippi. It's not my fight, and I appreciate the subtleties of whether this is the right time to fight this as a court case. But the overall tone of this piece seems to ignore the fact that there are people out there in very, very hostile local environments which will NOT change rapidly, or maybe at all, regardless of how much blue-state momentum you think you have now. Do you honestly blelieve that Mississippi would have come around on voting rights if we'd just given them a few more years to abandon their peculiar institutions? That didn't work in the 1860s, and it wasn't working in the 1960s either. In the final analysis, they had to be slugged over the head. Twice. The question isn't whether to slug them, it's whether to slug them NOW.
- gwcross
December 12, 2012 at 11:50am
Mr. Rauch ignores the Constitution. It is the obligation of the courts to determine what is and what is not constitutional in this nation. Whether or not deprivation of a state granted right (marriage in this case) is or is not constitutional is a decision only the courts can make. If we had waited for consensus gays would not be able to marry in Iowa. The fact of the matter is our Supreme Court was right when it determined that the Iowa Constitution prevents the state from discriminating against a class of citizens based upon their sexual orientation. The Iowa Legislature would never have come to that conclusion and state-sponsored discrimination would still exist here.
- wepoccnr
December 12, 2012 at 12:00pm
I love where I live, Durham NC. I want to marry the man I love here in Durham NC. But NC passed one of those anti marriage equality constitutional amendments this past May. (Let us hope that as we were one of the last states to join the confederacy, we'll also be the last to put that sort of discrimination into our constitution.) And not only do we want to marry, my community overwhelmingly supports us; the amendment failed at 30% for to 70% against and that was with a very large and politically active African-American electorate before Obama's endorsement. And our region, The Triangle, also supported us though at not quite that level. Why should all of us wait the estimated 17 (or 19) years for this to work itself out? Sorry, don't buy it.
- josephf
December 12, 2012 at 5:26pm
Rauch keeps saying that a major, favorable court decision would be bad, a setback, and yet his only comparison -- Brown vs. Board of Education -- proves the opposite point. The battles in court for fundamental rights paralleled and reinforced broader civil rights battles, and Brown remains perhaps the most revered Supreme Court precedent of all time, even though it was, as are all constitutional decisions that restrict or strike down government action, counter-majoritarian and anti-democratic. The cause of civil rights was hardly dealt a blow by the momentum to which Brown contributed and helped accelerate. A court decision here would simply be saying that if you want to legally discriminate on the basis of sexual orientation, you had better have a damn good reason, or else you will run afoul of the equal protection of the laws, which is frankly a decision that is long overdue, and ought to be an easy one. There is a risk here, for sure, but the only risk is that the court will not issue a favorable ruling on the issue. But a "Brown" for sexual orientation would be a great victory for civil rights. I don't understand how Rauch can think otherwise. Yes, you'll be deprived of future referendum or statehouse victories because you won't need them. You'll also be spared defeats in those arenas. We see that as civil rights are recognized, they are accepted, and it doesn't matter whether a court did it. And it's not a more genuine victory, or something, to win at the ballot box. The court battle is about recognition of civil rights, which aren't up for a vote, and that's a worthy principle in itself. You shouldn't *have* to convince a majority in order to get married, just as an interracial couple shouldn't have had to convince anyone else that their marriage wasn't sickening.
- JakeH
December 12, 2012 at 6:06pm
The Courts should hold clearly that being gay is not the equivalent of being black and that laws that result in treatment for gays that is different than the treatment for heterosexuals are NOT unconstitutional. States should then be allowed to decide who can marry. If gays are allowed to marry "anyone they want to marry," then there is no way to stop a Mormon woman from marrying the man of her dreams, even if he already has one (or perhaps three) wives. Why shouldn't she be allowed to marry whomever? Polygyny is, by any stretch, far more historically permitted than same sex marriage.
- horsefly
December 12, 2012 at 8:07pm
Linda Hirshman argued here a few days ago that the going to SCOTUS on the issue of the constitutionality of gay marriage might be fraught with danger. She didn't come out and say it but I read her to be cautioning against it. Add Kennedy to the four conservative justices and the issue might be dealt a severe judicial set back. Paradoxically, the argument of her piece was contra Rauch's and in line with the general and well put critiques of Rauch's almost unanimously running through this thread. That's because she cautioned against a possibly insufficient judicially incremental groundwork having been laid before the big question is put to the high court. But were she confident of a favourable judicial outcome, which is a "just supposin" premise of Rauch's piece, I'm pretty sure she'd welcome that adjudication. Rauch's argument is different from hers. He's worried about a Rowe v. Wade like backlash from what he thinks would be taken as imposed judicial fiat as the perceived negation of rightful legislative processes. I need not repeat the shortcomings of that view because they have been so well made on this thread. But were I a gay American or an civil rights oriented one--I'm not American; in Canada our Supreme Court ruled years ago that laws defining marriage as between only a heterosexual couple violated our constitution's guarantee of equal rights under law-- I'd have worried over Ms Hirshman's caution, though that horse is now out of the barn, and would not have paid more than a moment's attention to Rauch's.
- basman
December 12, 2012 at 9:21pm
From a lilberal perspective, the analogous case is Brown v. Board of Education, but conservatives might see (and receive in a more primitive part of their brains) a comparison to Roe v. Wade. Forty years after that case, we are still fighting the abortion wars, and the fight is not going so well recently. The Supreme Court could decide that states like California, which authorize civil unions for same-sex couples, must confer the name "marriage" as well. That decision would bring to seventeen the number of states performing same-sex marriages. As for Mississippi recognizing a marriage performed in another state, that is a legal issue separate from Mississippi performing same-sex marriages; it invokes another section of DOMA, and it is probably just a matter of time before the right case reaches the Supreme Court. When that case is decided favorably would probably be the time to go back to the Supreme Court for a decision binding on all fifty states. If that takes five or eight years and frustrates liberals, it should also allow the ultimately favorable decision to be accepted more readily by more of the population and allow it to persist more easily than Roe.
- peterpalys
December 13, 2012 at 5:23am
Here's what I've never understood about the Roe v. Wade criticism. Would we *not* be fighting about abortion if there were no Roe v. Wade? Of course we would, except that states would be much freer to regulate abortion, and the stakes of the fight would be much higher. Roe or no, we're *always* going to be fighting over abortion, but, thanks to Roe, the playing field is smaller and potential consequences less significant. Indeed, without Roe, I could see abortion taking up even more room in the political discourse, while still not reaching consensus. Besides, Roe is popular. I'll grant that it probably contributed somewhat to the rise of the Christian right, but only somewhat, and I'm not convinced of the backlash narrative -- the idea that Roe caused more harm than good (assuming a pro-abortion-rights perspective).
- JakeH
December 13, 2012 at 4:03pm
I did not mean to criticize Roe or the pursuit of abortion rights via the courts. Obviously, the future abortion fight was then unknown. I only mean to suggest that a Supreme Court decision mandating marriage equality when more than thirty states explicitly in their statutes or constitutions reject it invites an unnecessary fight potentially similar to the abortion wars. There is an alternative path of mandating that states that grant civil unions call them marriage and, through the Full Faith and Credit Clause and overturning the relevant section of DOMA, requiring states to recognize marriages performed in other states.
- peterpalys
December 13, 2012 at 4:14pm
Just to make it clear too, I wasn't asserting a concern over a Roe v Wade backlash but rather noting it as part of Rauch's argument. Abortion being abortion it was fated to be a long enduring issue in any event of what SCOTUS did or didn't do, its decision a good and balanced thing of obvious dramatic immediate help to first termers wanting an abortion. Roe created more difficulty for the court institutionally than it did for the right as such. Gay marriage isn't in these terms a comparable issue. A generation under 30 is indifferent to it. There is no tragic clash of values or rights, a very definition of tragedy, in it as there is in abortion. And I understand no argument that makes sense to me standing against gay marriage. For those reasons and others, as I noted before, but for Hirshman's cautioning, I would have strategically enthusiastically supported the supreme court deciding the issue and not have given Rauch's argument hardly any consideration at all.
- basman
December 13, 2012 at 7:08pm
Peter, I understand, and would welcome your alternative route too (as a big step in the right direction), but the sticking point for me is that I actually think that this is a matter of equality before the law, pure and simple, and it doesn't matter how many states have been moved to outlaw it, just as it didn't matter how many places had legal segregation on the books. I think that it not only does the cause a lot of good by having the highest court recognize it as a matter of fundamental rights that can never be taken away, but that it gives the cause the dignity and stature that it deserves, and gives the result the durability and principled grounding that it deserves -- in a way that other routes to the same result don't. One is not only concerned here with the practical effect on individuals' lives, but also, I think, the legal and political morality of the issue. With a pro-gay-rights Brown, the Court would not only be doing gay people good, but doing the country and the Constitution good too, because it would be a strong, worthy affirmation of the principles and values they stand for but which are ever imperfectly observed. Such a ruling would be a great, historic milestone. The only danger -- a very real one -- is that the Court will deal the cause a blow this time around, or offer a half-measure that, while good in itself, would foreclose the full and proper recognition of equal rights for gays under the law. It might take a small step while at the same time declaring forevermore (until overruled) that the big step is a step too far. I don't want to see that happen.
- JakeH
December 13, 2012 at 10:56pm
If the Court says, We don't need to address whether sexual orientation is subject to heightened scrutiny, fine. The risk is that they will address it, and say that it isn't (when it should be), and that would be very unfortunate.
- JakeH
December 13, 2012 at 11:00pm
I am pretty sure that if the Court takes a half-measure, it will not foreclose eventually deciding that marriage is a right that cannot be denied because of sexual orientation. The half measure would allow the country time to move toward a more accepting mind-set. Both Brown and Loving were decided when about 1/3 of the country still had segregated schools and forebade inter-racial marriage, respectively. We may not reach such rates of legal acceptance of same-sex marriage before the Court mandates it for the entire country, but it would be better to have a solid majority in polls (55% - 60%) behind it when it does so. I see a danger in a possible backlash that could be minimized, if not avoided.
- peterpalys
December 16, 2012 at 6:06pm