Columns » Jay Barth

Marriage Equality's Loving case: Is it time?


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As the U.S. Supreme Court accepted two marriage equality cases for full review, last Friday marked another key moment in the nation's progress towards marriage equality that has accelerated across the past two years. From state legislative actions to court rulings to ballot measure outcomes to the expansive statements of support by a (now reelected) president, it is clear that marriage equality will arrive across America. Only one question remains: when?

One of the two cases accepted for review was unsurprising. A series of federal courts have found unconstitutional the federal definition of marriage in the 1996 Defense of Marriage Act. While the Supreme Court may yet find a way to evade the issue of whether heightened scrutiny should be applied in all cases involving sexual orientation (as the Second Circuit Court did in a historic first in the case before the court), most all observers expect that the Supreme Court will likely affirm the lower courts on a matter that does not involve the right to marry itself but instead the equal treatment of such marriages.

Decidedly bigger news was the court's decision to accept the challenge to California's Proposition 8, the state constitutional amendment that overturned California's short-lived right to marriage for same-sex couples in 2008. Controversial among gay rights advocates from the moment of its filing in federal court because of the fear that it was "too soon," the challenge to Prop 8 spearheaded by superlawyers David Boies and Ted Olson has been successful at every level of the federal system to date. Most recently, the Ninth Circuit found that California voters' action was "the deprivation of an existing right without a legitimate reason."

A denial of review by the Supreme Court would have left the lower court's ruling in place, restoring marriage equality in California. Still, its impact would have been limited to that state. After oral arguments, the Supreme Court may also simply affirm the Circuit Court ruling, applying its own precedent in the 1996 Romer v. Evans case and making California the 10th state (along with the District of Columbia) with marriage equality.

However, the court could go all in on the California case, using it as the vehicle to affirm a federal constitutional right for same-sex couples of marry. Thus, Hollingsworth v. Perry could become the gay movement's Loving case, the 1967 Virginia case overturning the ban on interracial marriage in that state and 15 others.

Is it time or is it too early? Progressives who fear that it is too early point to the 1973 Roe decision. While states were slowly reforming archaic abortion laws, the unelected court's overturn of all state laws on the matter helped to produce a backlash that prevented any semblance of a national consensus on abortion rights to emerge. As Justice Ruth Bader Ginsburg later said, "It's not that the judgment was wrong, but it moved too far too fast." Justice Anthony Kennedy (the key vote in this case) may become convinced that progress is methodically being made via democratic institutions, thus undermining the need for the court to provide a sweeping ruling in this case. Ironically, the electoral success for marriage equality on Nov. 6 might well provide this view cover.

While the possibility of a backlash would have been real just two years ago, the unidirectional movement on the issue since then has undermined it. National consensus has not yet emerged on the issue, but generational change is quickly bringing it to fruition; as George Will put it last weekend, "Quite literally, the opposition to gay marriage is dying." Indeed, the fact that no executive branch official is defending either DOMA or Proposition 8 provides evidence of an emerging national consensus on the issue. Just as important, while marriage equality advocates will likely pick up a chunk of additional states through democratic means in the next handful of years, the movement will quickly hit a brick wall in the Mountain West and South. Thus, sooner rather than later, the issue will return to the court with the result inevitable.

The key difference: Justice Kennedy won't be around if the issue comes around again. Already the author of the two most important pro-gay-rights decisions handed down by the court, the odds seem good that Kennedy will decide that now is indeed the time and that he wants to carry the legal movement for gay equality across this finish line.


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