In my previous entry, I noted that “why” gay marriage should be “the law of the land” is vitally important. This writer has no idea how the Court will rule, although many feel that it is a foregone conclusion. There are some considerations that give me pause to reach that conclusion. It will be interesting to see if these issues enter oral argument at any point.
There is a trio of cases that proponents of gay marriage use to justify their arguments that ultimately culminated most recently with a fourth case- Windsor. The first is Lawrence vs. Texas which somewhat invalidated that state’s sodomy laws. Justice Kennedy was the author in that case and he figures prominently going forward. This ruling struck down a sodomy conviction since it involved private consensual behavior between two adults. The decision states that these facts are important. Hence, homosexual rape is still a crime, as is homosexual contact with a minor or homosexual conduct in public. As mentioned in the previous article, marriage is not a private act once the state becomes involved and the state must necessarily be involved for a marriage to be legal. The underlying purpose of marriage is to foster a stable family relationship, the rational basis reason for marriage laws in the first place. Most importantly, a quote from Kennedy often overlooked in this decision comes near the end:
it…”does not involve whether the government must give formal recognition to any relationships that homosexuals wish to enter.” [Emphasis added]
Thus, under Lawrence the government is under no requirement to accept homosexual behavior, nor are they required to formally accept a homosexual relationship and in this context we are talking about the marriage relationship. It was not the activity of the homosexuals that was being vindicated; it was the actions of the government that was criticized.
The second case is the Romer case which invalidated a Colorado constitutional amendment which denied homosexuals any potential for preferential treatment and prohibited the state from elevating homosexuals into the suspect or protected class category. Although the voters, according to public opinion polls at the time, disapproved of discrimination against gays, their primary motivation was a greater disapproval of affirmative action programs in general. What doomed Colorado’s Amendment 2 (which passed 53% to 43%) was its breadth and novelty. No law such as this had ever been passed distinctly singling out any specific class of individuals for “discrimination.” But, what is so novel about a state constitutional amendment defining marriage as between a man and woman? This is hardly breaking new legal ground, nor are these efforts particularly broad. They are, in effect, stating that which is (or was).
To underscore this point is another case- Baker vs. Nelson– which is probably the biggest non-case ever. Here, a gay couple in Minnesota was denied a marriage license and that denial was upheld in the courts. A petition reached the Supreme Court asking that state bans on gay marriage be negated. The Court denied the request for “lack of a federal question.” In the case, the Petitioners were making the same Due Process and Equal Protection arguments being made today by gay rights groups. This denial has to be put in historical perspective since it came a mere five years after the infamous Loving vs. Virginia case. There was a federal question in Loving since a suspect class was involved. In Baker, no such class was present. It also was tacit approval of the importance of states in regulating marriage. And since it involved homosexuals, one can assume the Court tacitly approved of state laws against gay marriage.
This then brings us to the third case- Windsor. In another opinion written by Kennedy, it is important to note a very important point made near the end of that opinion which stated that the decision applied to the Federal government, not necessarily states. DOMA, after all, was a federal law that heavily intruded on traditional state rights. It is an indisputable fact that states have a right to regulate marriages. They can even choose not to regulate marriage at all. The decision is NOT a mandate for all states to adopt gay marriage. In essence, the Sixth Circuit got the interpretation correct: the federal government, for federal government purposes, should recognize gay marriages in states where it is legal. Before we jump into any talk of the Immunities and Privileges Clause, the current case certainly is implicated and it could possibly be a path towards resolving some of the problems involved. When a married couple move from state to state, their marriage license is recognized in the new state. They do not have to reapply and get remarried in their new state. This would seem like a “Solomonic” solution going forward to address the concerns of gay married couples in states where it is allowed who happen to move to states where it is disallowed. It would seem like the best solution to leave the entire issue to the democratic process. In fact, the Court seems to be leaving themselves that option. Although the Privileges and Immunities Clause is not specifically mentioned, this solution is one of the questions presented for argument.
There is yet another important case that has nothing to do with gay marriage also authored by Kennedy decided just last year – Schuette vs. BAMN. In that case, Michigan voters passed a constitutional amendment mandating no discrimination or preferential treatment in university admissions or government contracting. Surely, race relations has a long and tortured history in the United States. It is as contentious an issue as is gay marriage. Yet, the Court let that amendment stand and the state prevailed. in the words of Kennedy:
“…it is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
Obviously, Justice Kennedy is a key vote in the pending case. He has authored Windsor, Lawrence and Romer. Most importantly, he has also most recently authored Schuette, a 7-2 decision. Hopefully, he will remember the words quoted above when it comes to the right states to define marriage as they have since our country’s founding. It should be mentioned that in no decision nor in oral argument has Kennedy shown any interest in expanding the list of suspect classes nor the list of fundamental rights although there has been more than ample opportunity.
We have seen the heavy hand of the Supreme Court in action when they interfered in the democratic process. The Dred Scott decision led directly to a civil war. Forty years after Roe, abortion remains a contentious issue, decided at a time when abortion laws were being relaxed through the legislative and democratic process. If there is this alleged sea change in attitudes towards gay marriage, then these laws will likewise fall by the wayside and die a natural death. Like 1857 and 1972, there will be states resistant to historical changes. But also like 1857 and 1972, the Supreme Court could potentially do more damage than good believing they are “resolving the issue once and for all.”