U.S. Justice Antonin Scalia has already conceded that laws banning same-sex marriage are unconstitutional, according to one constitutional scholar. Moreover, the U.S. Supreme Court is "very likely" to invalidate the federal Defense of Marriage Act once it reaches the U.S. Supreme Court, says another, generally conservative, expert.
These are just two of the conclusions from more than a dozen constitutional law jurists who participated in a recent two-week long discussion of what most consider an inevitable case before the nation's highest court. Most of the opinions bet heavily that the Supreme Court will have to acknowledge that bans on same-sex marriage—or laws limiting same-sex couples to a license for a civil union or domestic partnership—do violate the U.S. Constitution's guarantee of equal protection.
If they are right, then gay legal activists should be demonstrating a sort of "bring-it-on" attitude about putting a question before the Supreme Court, which holds its first conference meeting for the 2011-12 session Sept. 26.
However, here's a surprise: Not every gay legal expert is in favor of putting such a question to the Supreme Court right now.
Gay law professor William Eskridge Jr. was one of several essayists in the scotusblog.com symposium last month to argue that the same-sex marriage conflict "ought not be resolved one way or the other [by the Supreme Court] until public preferences become more settled."
"The Supreme Court ought to avoid a final judgment on the constitutionality of marriage law's discrimination against lesbian and gay couples until the nation is substantially at rest on the issue," wrote Eskridge in his Aug. 15 post in the scotusblog symposium. "Admittedly, that moment is coming more rapidly than anyone predicted, but that moment has not yet arrived."
His argument is that, when the Supreme Court issues a monumental ruling too soon on an intensely controversial issue—such as the right to abortion or the right to private, sexual relations between same-sex adults—it raises "the stakes of politically intense issues to the detriment of our pluralism."
Former Reagan era Solicitor General Charles Fried expressed a similar position in the scotusblog symposium. He said he worries that a Supreme Court ruling on the issue would "abort" a gradual acceptance of same-sex marriage that is already taking place.
"I believe that a strong liberty, equality and association claim can be made for allowing same-sex couples to form civil unions with the same legal effects as marriage," wrote Fried Aug. 25. "Marriage is different only in that it traditionally symbolizes the citizenry's celebration of the union, and I do not believe people should be forced by a Supreme Court ruling to celebrate what they deplore." But even Fried suggests a victory for same-sex marriage is likely.
"Ideally, Congress would repeal DOMA before the case reaches the Court," said Fried, "but with the dysfunctional Congress we enjoy today that is most unlikely to happen. Thus a ruling is unavoidable and its outcome is very likely to be invalidation of DOMA."
The symposium included essays from some of the most respected legal scholars in the country, examining "the future of the Defense of Marriage Act and Proposition 8" at the Supreme Court. Although a case involving the merits of either law has not yet reached the high court, two or three "are likely to reach the Court soon, even if not this Term," said scotusblog symposium manager Kali Borkoski.
The essays, 21 in all, provided a glimpse into the sorts of arguments that will almost certainly be made when Perry v. Brown, (the California Proposition 8 case) and/or one of several cases challenging DOMA make their ways to the high court.
Not everyone agreed with Eskridge and Fried. In the last post of the symposium, famed Harvard law professor Laurence Tribe argued that it was "perverse" to make gay couples "wait a bit longer for their rights."
"Those who advance this essentially gradualist view ground it in hard-nosed realism and assure us that, even though they recognize the justice of the case for same-sex marriage, legislative change is simply preferable as a matter of democratic legitimacy or of some strategic consideration such as avoidance of socio-political backlash," wrote Tribe.
"The most obvious historical analogy" to this sort of strategy, said Tribe, is the Supreme Court's "disgraceful and widely condemned decision to duck the issue of interracial marriage when it first presented itself in Naim v. Naim."
Naim v. Naim was a 1955 decision in which the Virginia Supreme Court ruled it permissible for state law to ban interracial marriage. The U.S. Supreme Court refused to hear an appeal. It wasn't until 1967 that the U.S. Supreme Court took the better-known Loving v. Virginia that it ruled the ban on interracial marriage in Virginia and other states was unconstitutional.
Refusing to hear a case challenging a ban on same-sex marriage, as it refused Naim, said tribe, "is hardly the kind of precedent that any Justice would wish to follow."
"And, to make matters worse," said Tribe, "the Court would have to perform legal acrobatics far more painful to behold than those employed in Naim, because Lawrence laid the groundwork for striking down bans on same-sex marriage in … terms so stark that Justice Scalia, in his ferocious Lawrence dissent, as much as conceded that a rejection of the federal constitutional right to same-sex marriage could not be reconciled with the Lawrence holding or with its underlying rationale."
Tribe may be right, but there is ample evidence of the high court's ability and willingness to perform "legal acrobatics" to avoid being where the Constitution demands it must go. To wit, there's the 1986 case Bowers v. Hardwick. In that case, a majority of the Supreme Court upheld state laws banning consensual sex between same-sex partners by simply declaring that there is, in the Constitution, no fundamental right to engage in homosexual sodomy.
However, as Justice Harry Blackmun said in his dissent, the case wasn't really about whether there was a "right to engage in homosexual sodomy."
That was essentially the tact used by New York's highest court in 2006, when it ruled the state constitution "does not compel recognition of marriages between members of the same sex."
"Whether such marriages should be recognized," said the state court, "is a question to be addressed by the Legislature."
The Washington State Supreme Court then issued a similar ruling, saying it was a question for either the legislature or a popular vote.
So, the legal acrobatics have already been invented and exercised. The question is whether the public's comfort level has advanced far enough toward accepting marriage between same-sex couples to embolden the Supreme Court to do its job.
Eskridge says "not yet."
However, here's an interesting thought: In 1967, when the U.S. Supreme Court ruled that states could not bar interracial marriage, only about 20 percent of Americans (according to a Gallup Poll) "approved" of interracial marriage. Today, polls are consistently showing more than 51 percent of U.S. residents support the right of same-sex couples to obtain a marriage license.
©2011 Keen News Service. All rights reserved.
