How Can the Supreme Court Help Gay Rights? By Keeping Out Entirely

by Jonathan Rauch | December 12, 2012

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.

 

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