Justice Delayed

by Jeffrey Rosen | June 11, 2008

The California Supreme Court's expansive decision last week to legalize gay marriage has presented its opponents with an unfortunate opportunity. If the legal merits of the decision had been clear, the court's boldness could have been justified as a triumph of shining principle over pragmatic politics. Unfortunately, the legal merits are extremely murky, giving ammunition to those who are mobilizing to overturn the decision by initiative this fall. In addition, the California decision may trigger a backlash that hurts Democratic chances in November and guarantees a conservative U.S. Supreme Court for decades to come. For all of their noble intentions, therefore, the California justices may have handed supporters of gay marriage a Pyrrhic victory.It's easy to celebrate the majority opinion by Chief Justice Ronald M. George, a Republican appointee, for standing up for simple fairness and for anticipating the future. Given that young people support gay marriage just as strongly as older ones oppose it, there's little doubt that, in a few decades, gay marriage will be legal throughout the United States--as well it should be. And it's obvious that George and his colleagues saw themselves as brave pioneers whose judgment would ultimately be vindicated by history: The California justices repeatedly compared bans on gay marriage to bans on interracial marriage and suggested that their decision, in time, would be as celebrated as the California Supreme Court's decision striking down anti- miscegenation laws in 1948. But the analogy to interracial marriage bans is less than perfect. The central question in the California case is whether it's possible to create a separate-but-equal category of civil unions for gays and lesbians without demeaning them. Some commentators, such as Andrew Sullivan, have powerfully argued that, in the case of marriage, separate is inherently unequal and demeaning. That's a plausible argument, but not everyone agrees. Of the courts that have considered this question, two (Vermont and New Jersey) have held that civil unions can, in fact, be a separate but equal alternative to marriage; only one (Massachusetts) has disagreed. Moreover, Democratic presidential candidates from John Kerry to Hillary Clinton and Barack Obama support civil unions but oppose gay marriage. Judicial decisions that blithely pronounce the basic positions of major political parties to be unconstitutional haven't fared well in American history--as reaction to the Dred Scott and Roe v. Wade decisions shows. (By contrast, when Brown came down in 1954, it was supported by more than half of the country and not officially opposed by the Democratic Party or the GOP.) Although you can argue the question either way, Chief Justice George inadvertently undermined the heart of his own conclusion that civil unions are inherently demeaning. He and his colleagues conceded that California's marriage laws were not motivated by prejudice or animus--unlike interracial marriage bans, whose supporters explicitly said in 1948 that they were trying to maintain white supremacy. "We do not suggest that the current marriage provisions were enacted with an invidious intent or purpose," the California justices declared. Indeed, when the California legislature expanded domestic partnerships in 2003 to include all the legal benefits of marriage, it said that its goal was to provide essential rights to "all caring and committed couples, regardless of their gender or sexual orientation" and to "reduce discrimination on the bases of sex and sexual orientation." (The legislature later voted twice to legalize gay marriage in bills vetoed by the governor.) Under most constitutional analysis, the concession that California's decision to create civil unions rather than gay marriage wasn't motivated by prejudice should have ended the matter: Courts generally uphold laws unless they're irrational, and, without evidence of hidden animus, it's hard to conclude that a desire to maintain the traditional definition of marriage is completely irrational. To get around this analytical roadblock, the California Supreme Court had to hold that discrimination on the basis of sexual orientation should be treated as skeptically as racial discrimination--an argument that the U.S. Supreme Court and other state supreme courts have so far refused to accept. Social conservatives are already questioning one of the premises of this conclusion: that sexual orientation, like race, is immutable. "There is no evidence to establish that a homosexual lifestyle is an immutable characteristic such as race," a lawyer with the socially conservative Advocates for Faith and Freedom told The New York Times. The other tests for identifying constitutionally "suspect classes"--that is, groups, such as racial minorities, entitled to the highest level of constitutional protection--are even more malleable. For example, how do you decide whether gays and lesbians have adequate political influence without having some idea of how much influence they're entitled to expect? Wasn't the fact that the domestic partnership bill passed in California evidence that gays and lesbians do have political power? For these reasons, other courts have refrained from calling gays and lesbians a suspect class, and, by opening this Pandora's box, the California justices increased the possibility that their decision will be overturned. The California justices combatively declared that they didn't care if their decision was unpopular or even repudiated: "The Court should review individual rights questions, unabated by its judgment about whether a particular result will be subject to criticism, hostility, or disobedience." But Michael Klarman of Harvard Law School, who is writing a book on constitutional backlashes against judicial rulings, argues that the Massachusetts gay marriage decision in 2003 may have cost John Kerry the last presidential election by increasing social conservative turnout in swing states, like Ohio, whose ballots included initiatives to ban gay marriage. Those initiatives passed by overwhelming margins: Before the Massachusetts decision, only four state constitutions defined marriage as a union between a man and a woman; today, 26 state constitutions have gay marriage bans. During the 2004 election, Klarman concludes, opposition to same-sex marriage also provided the margin of victory for Republicans in closely fought Senate races in states like Kentucky and South Dakota. The Massachusetts decision wasn't overturned by the voters, largely because of the state's intentionally cumbersome constitutional-amendment process, but California's constitution can be amended by a simple majority of voters. According to a recent Field Poll, 51 percent of Californians oppose extending existing marriage laws to include same-sex couples (although only one-third of Californians oppose equal civil unions as well). It's possible that the anti- gay marriage initiative will fail in November, given the closeness of the polls and the fact that undecided voters may be moved by the thousands of marriages that will have already been performed by then. But if the initiative passes, as supporters expect, the California court's self-congratulatory rhetoric about the wisdom of imposing gay marriage by judicial fiat will look shortsighted rather than prescient. Perhaps the California decision will hurt Democrats less than the Massachusetts decision in 2004. Christian evangelicals who would be most motivated to turn out in opposition to gay marriage already mistrust McCain for opposing the federal marriage amendment. (They may be more motivated by his opposition to abortion: McCain, unlike George W. Bush, has called for the overturning of Roe.) But, if the California decision makes things even marginally more difficult for Barack Obama, it could set back the broader national cause of gay marriage for decades to come. With at least two U.S. Supreme Court appointments, President Obama could lay the foundation for a Court that might eventually nationalize gay marriage once the country is ready. A McCain Court, by contrast, could ensure that gay marriage continues to be fought from state to state for several generations. As Klarman puts it, "If the California gay marriage decision makes it harder for Barack Obama, it's hard for me to believe that it's desirable for supporters of gay marriage to insist on it." My heart is with my colleague Richard Just, whose eloquent response follows, but my head tells me that courts have often delayed the cause of justice when they have attempted to impose contested reforms before the country is willing to accept them.

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