Dodging the Supreme Court bullet

by on July 3, 2012  •  In Marriage, Supreme Court

No on Prop 8 poster FEATURED

Following is a portion of my guest post today at Prop 8 Trial Tracker, which is running an online symposium on the question of whether it would be better for the LGBT movement if the Supreme Court grants or denies cert in the Perry case.  Since anyone who reads this blog knows my answer (I’m desperately hoping for a denial), I am cross-posting only a portion of the explanation:

Should certiorari be granted, the conventional wisdom is that Justice Kennedy will essentially determine the outcome, and I see no reason to call that prediction into question. Although LGBT folks correctly associate Kennedy with the pro-gay outcomes in Romer and Lawrence, the Perry case will strike a different chord for him, implicating one of his strongest beliefs: the rights of states.

Justice Kennedy describes our system as one of “dual sovereignty,” which means that states have equal authority with the federal government to make law unless there is a direct conflict necessitating one national rule. Will he find that there is no rational basis for limiting marriage to different-sex partners? If the case turns on the particular context of California law, maybe. If the effect of such a ruling would be to throw out the laws of 40-plus states, I doubt it.

When Romer v. Evans was before the Court, it was framed as a challenge to a provision unique to Colorado. Lawrence v. Texas involved an archaic and extreme law that imposed criminal penalties, a law that a super majority of states had already eliminated by state court rulings or state legislative action. Perry v. Brown will come to the Court as a horse of a different color.

For one thing, although opinion polls on marriage are shifting, they are not shifting at an equal pace at the state level, and thus our “dual sovereignty” system is not yet reflecting the changes. The resounding enactment of a ban on gay marriage in North Carolina is only one example. Political scientist Greg Lewis estimates majority support for gay marriage exists in about 20 states, most of which have not equalized their laws. Polls this year show only 35 to 40 per cent support for same-sex marriage in major states such as Ohio, Pennsylvania and Florida. Hopefully, voters in one or more of the four states where marriage is on the November ballot will endorse equality, which will mark a breakthrough in the politics of gay marriage. But the margins are likely to be close.

While the Supreme Court is not driven by poll results, the Justices nonetheless are quite sensitive to preserving the Court’s legitimacy in the eyes of the public and avoiding sweeping decisions on hot-button cultural issues if possible. For the progressive Justices, the biggest concern about “getting ahead of the country” is likely to be the risk of major backlash.

For advocates of equal access to marriage, the primary goal should be to keep driving up the levels of public support. For this issue, in this phase of its development, the let-each-state-decide dynamic is essential because it provides the space for change to happen gradually. Incremental change increases the public comfort level because it sends the message that the nation will be allowed to adjust to this alteration of a major social institution at its own pace.

Everyone understands that allowing state variability is a kind of structural compromise in the American political system – necessary now to ensure enough popular support to prevent calls for something like a federal constitutional amendment barring gay marriage, even if the variability is grating to the principle of immediate and complete equality, under all law, state as well as federal. But it is a compromise that will pay off in the long term. And unless something happens to derail the progress happening now– something like a Supreme Court decision endorsing marriage inequality for example – the long term may turn out to be, by historical standards, remarkably short.



2 Responses to Dodging the Supreme Court bullet

  1. Rick July 4, 2012 at 12:51 AM

    There is some tension between Justice Kennedy’s strong federalism belief in dual sovereignty and his equally strong libertarian instinct to protect individual liberties from government intrusion. Given these seemingly competing concerns, it is hard to tell which way Justice Kennedy would go in the Prop. 8 case when it reaches the Court.

    But it might be possible that he would grant review and produce a majority opinion that is limited to California for now but lays the doctrinal foundation for a future ruling nationwide.

    Also making any prediction exceedingly difficult is the fact that the march for marriage equality is making such rapid progress that by the end of 2012, we may have 3 or more states recognizing gay marriage.

    Yes, all those states would still be in minority, thus triggering concerns about state rights. But when marriage equality harms no one and is inevitable, would Kennedy’s libertarian streak trump his desire for state variability and lead to a trilogy of cases — Romer, Lawrence and Perry — affirming gay rights (and thus solidify his legacy)? It is anyone’s guess. That’s why I truly believe that the Prop. 8 case has a 50-50 shot.

  2. Nan Hunter July 13, 2012 at 11:58 AM

    I agree – you’ve stated the case for the hopeful 50 part of the 50-50 quite well. I’m just more pessimistic. But this is such a rapidly evolving landscape that pretty much anything is possible.

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