THE STATEMENTS AT ISSUE:
“The Supreme Court’s decision to take up the issue of a constitutional right to gay marriage is both good and bad news for those who believe that the Constitution ought to mean what it says. It is good news because the current state of affairs, where the right exists in some circuits and not others, pleases neither side and appears unsustainable. But it’s also bad news because the court’s decision this June will probably invent a constitutional right to same-sex marriage, which would make it arguably the worst instance of judicial activism by the Supreme Court since Roe v. Wade.”
– Curt Levey, president of the Committee for Justice, a conservative legal advocacy group, in a statement on January 16 in reaction to the Supreme Court’s order agreeing to review basic constitutional issues over same-sex marriage.
“After years of struggle and the dedicated work of thousands across the movement, we are finally within sight of the day when same-sex couples across the country will be able to share equally in the joys, protections and responsibilities of marriage….From the early stirrings in Hawaii in 1993 to the critical victories in Massachusetts, California, Iowa, and New Jersey to the breathtaking triumphs of recent months, we all can take pride in what together we have accomplished.”
– Jon W. Davidson, legal director of Lambda Legal, a legal advocacy organization working to promote gay rights, in a statement on January 16. The organization has been an active participant in the constitutional campaign for same-sex marriage.
WE CHECKED THE CONSTITUTION, AND…
The Founders who wrote Article III into the Constitution, creating a system of federal courts, understood that constitutional law would develop just as law generally had developed under the system of the common law, borrowed from the English tradition: court cases would build upon each other to more or less continuously create the substance of constitutional doctrine. The system, in a sense, means that very few constitutional issues are firmly fixed or settled, and will change as times change.
There is nothing in the text of the Constitution that dictates who may join in marriage, but the Supreme Court has been treating it as an institution shaped and sheltered by the Constitution since at least 1923, when the court said the right to marry and to raise children “is a central part of liberty protected by the Due Process Clause” – a clause that appears in both the Fifth Amendment, applying to the federal government, and the Fourteenth Amendment, applying to the states. Since 1987, marriage has been treated by the court as a “fundamental right.” And, since 2003, the court has understood that personal decisions about intimate relationships were matters of privacy for homosexuals as much as for heterosexuals.
Still, at this point in 2015, with the Supreme Court set to rule on same-sex marriage, the scope of the marital right is not settled as a constitutional matter. As the history of major decisions on marriage by the Justices shows, of course, the court is well on its way toward having a foundation for its analysis of that ultimate question. But it is even further along than the recitation of those historic rulings would suggest.
This much also seems clear from what the Supreme Court has said – or at least strongly hinted at — about gay rights over the years:
First, states may not exclude gays and lesbians from marriage because of hostility toward or moral disapproval of homosexuality itself.
Second, the fact of being a homosexual is not enough to justify decisions by government to discriminate against them.
Third, the court apparently no longer finds persuasive the argument that it settled the constitutional question against same-sex marriage in a one-line, unexplained ruling in 1972 (Baker v. Nelson). It simply ignored that argument when it was made the last time the Justices ruled on marriage rights, in the 2013 case of United States v. Windsor.
Fourth, a majority of the current Justices seems to accept the idea that committed relationships between gay and lesbian partners are endowed with a special dignity, for the couple and for any children they have or raise. When gay and lesbian couples have been able to marry, the majority of the court treats that as established in law, entitled to legal equality.
Fifth, although the court has shown deep respect for states as the proper level of government to determine most issues of marriage, it has not accepted the argument that the federal courts – and the Supreme Court itself – lack authority to rule upon limitations on marriage that states may choose to impose, if they run afoul of the Constitution.
Are those five points enough, taken together, to suggest that the Supreme Court has little to do, in the new cases it has just agreed to rule on, beyond simply declaring that the constitutional debate is over, with full marriage equality across the entire nation for homosexual partners who wish to wed? That would seem to be a fair prospect, true. But it is not a certainty.
There are aspects of the constitutional controversy over same-sex marriage that the court has not yet settled:
First, is the court going to apply a rigorous constitutional test to state bans on marriage, or a more lenient one that states might be able to satisfy? The court has managed to issue a significant series of rulings on gay rights without specifying which test it is using.
Second, might the court now accept the argument that an issue as culturally and socially sensitive as defining who may marry in the first place should be left to the choice of the people themselves as voters, or the choice of their elected state legislatures?
Third, might the court be persuaded that the movement toward same-sex marriage is proceeding in the states as a political issue, with growing support in public opinion polls and more states opting to allow such marriages, so that this should be given more time to see where it goes?
Fourth, are there any persuasive justifications, in social science or family law, that a state can now put forth to justify excluding same-sex couples from access to marriage?
Fifth, could the court, out of a sense of caution, recognize at this point a constitutional duty for states to give official recognition to same-sex marriages that have been performed in another state, as the next logical constitutional step, but leave for later the basic question of a right to marry in the first instance?
Over the next three months, all of those considerations – what the court may have settled already and what it may yet need to settle – will be debated by those involved in the cases now before the Justices, and will be aired when the cases come up for hearings before the court in late April. America will not know how the Justices have reacted until early summer, probably in late June.