January 22, 2016 — Reprinted from Constitution Daily, the blog of the National Constitution Center in Philadelphia.
Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at one of the most significant issues the Supreme Court faces in the same-sex marriage controversy: where it should be resolved.
THE STATEMENT AT ISSUE:
“Over and over in my six years in office, I have seen America at its best….I’ve seen something like gay marriage go from a wedge issue used to drive us apart to a story of freedom across our country, a civil right now legal in states that seven in ten Americans call home.”
– President Obama, in a passage in his State of the Union message to the nation on the night of January 20 – the sixth anniversary of his inauguration as the nation’s Chief Executive. Six Justices of the Supreme Court, with the power to make same-sex marriage a national right, sat in the front row as he spoke. The President does not have the power to do that on his own, but his Justice Department plans to urge the court to do just that.
WE CHECKED THE CONSTITUTION, AND…
Since 1803, the Supreme Court has claimed for itself the ultimate power to “say what the law is,” in the words of its decision back then in Marbury v. Madison. It is a power that is so firmly established that even those who protest “judicial activism” have not been able to take it away or even narrow it. And the law that the Supreme Court, and lower courts, can establish includes constitutional law, with the Supreme Court having the final say (absent a constitutional amendment).
For the past 19 months, America has seen that power being used to declare, for much of the nation, that marriage is a civic institution that government must open equally to gay and lesbian couples. As of now, same-sex marriages are legal and are occurring in 36 states and in Washington, D.C. Of those, the largest number resulted from decisions by lower courts – 25, with 22 of those occurring in that 19-month span. That is a speed not equaled by any other civil rights movement in U.S. history, and it is an awesome display of judicial authority on an issue of the most fundamental cultural concern.
The 19-month span covers the period after the Supreme Court, in late June 2013, struck down a key part of the federal Defense of Marriage Act. While the Justices in that ruling did not take a position for or against state power to ban same-sex marriage, the sweeping language of the main opinion has been interpreted repeatedly since then by lower courts as supporting decisions in favor of same-sex marriage itself.
It is not by coincidence, therefore, that one of the most significant issues the Supreme Court will confront when, later this year, it takes up the constitutional controversy over same-sex marriage is the question of where, in America’s government structure, that controversy should be resolved.
The Justices will be reviewing the decision last November by a federal appeals court in Cincinnati, which opened its opinion this way: “This is a case about change – and how best to handle it under the United States Constitution.” A bit later in that opinion, it added: “Who decides? Is this a matter that the national Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?” In the end, that court opted to leave it to the states, upholding the existing same-sex marriage bans in all four of the states involved in that case.
That appeals court ruling raises at least implied questions about the legitimacy of those federal court decisions that have gone the other way, striking down state bans in lawsuits filed by same-sex couples. Will the tens of thousands of same-sex marriages, performed directly in the wake of those court rulings, hold up in the future, or might they be undone? (The state court rulings reaching the same result were based on interpretations of state constitutions, not the national Constitution, so they have their own basis in legitimacy under the arrangements that states have adopted for themselves.)
Although court decisions are binding on the people who were directly involved in the cases, it is not certain, if those rulings do not survive Supreme Court review, what impact they may have on the legal relationships of other people, not parties before those courts. That secondary effect is a factor that the Supreme Court is likely to keep in mind as it weighs what to do in reviewing the controversy.
The Supreme Court does have a strong institutionalized respect for what the people of the states do when they have assumed the task of resolving a major social and political question. It made that clear just last April, when it ruled that Michigan’s voters were entitled to decide whether their state universities and colleges could adopt student admission policies based at least partly on race; the voters had denied that authority to the state’s public educational institutions. Indeed, lawyers for state after state have used that very ruling (Schuette v. Coalition to Defend Affirmative Action) to try to persuade courts to leave the same-sex marriage issue to the state governments.
Still, there is no doubt – and probably has not really been any doubt since 1803 – that a Supreme Court decision based on the Constitution, finding that a state law or policy has violated that founding document, will become “the supreme law of the land,” in the language of the Constitution’s Article VI “supremacy clause.” If the Justices opt to keep for themselves the constitutional choice on same-sex marriage, and rule in its favor, that will make that right real in the sense that counts, however much it may disappoint some across the nation who would rather have had the people choose.