JULY 18, 2015
THE THUNDERCLAP that sounded from the marble halls of the United States Supreme Court on Thursday, June 23 still echoes across the country, and indeed the world. The culmination of decades of struggle by gays and lesbians for the equal right to marry came in Obergefell v. Hodges, a 5-to-4 decision, holding that, as a matter of liberty and equal protection, states cannot deny same-sex couples the right to marry. Gay couples now enjoy, under the Constitution, the equal right to wed along with heterosexual couples throughout the United States. State laws forbidding such unions are unconstitutional. The dream is redeemed.
Rarely in history has such a momentous shift in civil rights taken place in such a compressed time frame. This publication has chronicled this seismic shift over the last several years through the review of several prominent books on aspects of the same-sex marriage movement. The first of these reviews was in March 2013, when we reviewed Michael Klarman’s From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage, a careful historical account of the gay rights movement. As that book recounts, from today’s perspective, the status of gays under the law was — until only recently — shocking. As we summarized that legal status in the review of Klarman’s book:
As of 1960, every state criminalized even private, consensual sex between same-sex adult partners. Arrests of homosexual men for engaging in same-sex relationships numbered in the thousands annually. Local vice squads shared such arrest information with the FBI, and […] even “friendship with a known homosexual could subject one to an FBI investigation.” Being gay was declared by President Eisenhower to be a “sexual perversion” that was “sufficient grounds for exclusion from federal employment.” Homosexual acts were deemed unprofessional conduct sufficient to deny or revoke licenses for doctors, lawyers, or nurses.” Professors were expelled from universities for alleged homosexual acts. The medical profession categorized homosexuality as a disease, and even the ACLU in 1957 referred to homosexuality as “socially heretical or deviant.” Gays and lesbians lived in the closet lest they fall prey to any of these life-crushing prohibitions.
And what of the first efforts to challenge state laws that criminalized homosexuality? Again, to quote from our review of Klarman:
In 1986, the United States Supreme Court faced this issue in Bowers v. Hardwick, and in a 5-to-4 decision ruled in favor of the constitutionality of such laws. The majority opinion, written by Justice Byron White, even went so far as to describe the argument for a constitutional right to engage in homosexual acts as “facetious,” and, in a concurring opinion, Chief Justice Warren Burger cited the 18th century legal English legal commentator, William Blackstone, for the proposition that homosexual relations were a “deeper malignancy” than rape.
Our review of Dale Carpenter’s Flagrant Conduct: The Story of Lawrence v. Texas, which appeared in July 2013, discussed arduous legal battle that lead to the Supreme Court’s first momentous step in the direction of gay rights equality: its 2003 decision to declare state laws against sodomy unconstitutional. This book tells the story of how, just 17 years after Bowers, the Supreme Court would revisit the issue and conclude, in Lawrence v. Texas, that any state’s law criminalizing sodomy was an unconstitutional infringement of the right of personal liberty. “There is a realm of personal liberty which the government may not enter,” wrote Justice Kennedy. Carefully, and some would say disingenuously, Justice Kennedy distanced himself from any implications this decision might have as to the right of gays to marry.
Just a little over a year ago we reviewed twin books on the history of the battle against Proposition 8, the initiative measure that outlawed gay marriage in California. One, Redeeming the Dream, was the personal account of the two lawyers, David Boies and Theodore Olson, who handled the trial and appeal of the challenge to Proposition 8, and the other, Forcing the Spring by Jo Becker, was her retelling of the history of that challenge as an “imbedded” journalist who witnessed the case unfold. As both books relate, the challenge to Proposition 8 finally won, but on a technicality: the Supreme Court decided the party appealing a lower court’s ruler holding the Proposition unconstitutional lacked standing to maintain the appeal to the Supreme Court. In this way, the high court sidestepped the question Olson and Boies hoped to bring before it: whether the state was constitutionally compelled to recognize same-sex marriage.
In August of last year, this author predicted that “the big constitutional issue — whether a state’s denying same-sex partners the right to marry is unconstitutional — will soon unavoidably find its way to the Supreme Court.” That is the issue the court faced and decided last week. Again, as in Lawrence v. Texas, it was Justice Kennedy in the center and four liberal colleagues that formed the court majority. Justice Kennedy’s opinion swelled to conclude:
Marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The four justice minority opinions heaped unrelenting, bilious contempt on the majority decision. Leading the critics, of course, was the court’s pre-eminent Originalist, Justice Antonin Scalia, who accused his colleagues of degrading constitutional reasoning to “mystical aphorisms of the fortune cookie.” In a separate dissent, Justice Clarence Thomas complained that “dignity” was not a ground for finding a constitutional right for gays to marry: the government cannot bestow nor take away dignity, he argued, making the further and remarkable claim that Negro slaves did not lose their dignity by reason of being enslaved. But most fundamentally, the minority opinions railed against the “creation” of a new constitutional right not specifically enumerated in the Constitution. Where does the Bill of Rights mention gays and the right to marry?
This is among the hardest things for non-lawyers (or, it would seem, even Supreme Court justices) to understand: how, without acting as a “super-legislature,” can the Supreme Court make rulings that in effect create new rights? The Originalist doctrine has a beguiling simplicity to it: you read the text and make your ruling based on its plain meaning as understood by the men who drafted it. Meaning is crystalized in time to original intent. But this way of viewing constitutional interpretation ignores the process by which the common law (as received from Mother England) evolves over time. Unlike their civil law counterparts on the European continent, which in theory decide each case on its own and without reference to prior cases, English and American courts decide cases on the basis of logical extensions of prior precedents. The result is that American constitutional law transforms over time, as the implications of past decisions point towards new conclusions.
The underpinning of the Obergefell v. Hodges decision were principally two precedents: Loving v. Virginia, a 1967 case which overturned state laws prohibiting “miscegenation” between the races, and the aforementioned Lawrence v. Texas, which ruled state laws against sodomy were unconstitutional. The rationale of Loving was that “marriage” was a fundamental right such that the state could not deny that status to persons of different races. The rationale of Lawrence was that human sexual relations are a private matter falling with the sphere of “liberty” that the Constitution protects. So, if marriage is a fundamental right, and if the state has no legitimate interest in prohibiting gay sexual relationships — what follows? This was the thrust of the argument articulated by Ted Olson and David Boies in their challenge to Proposition 8 — the logic of these (and other) prior cases compels the conclusion that the state cannot prohibit same-sex partners from marrying.
Thus, when the court does its job well, constitutional rights are not created out of thin air (granted, there have been times when this criticism might apply). Each case requires the justices to review prior decisions and unpack the implications they hold for the case in front of them. Yes, the outcome may seem like a “newly created right,” but, when the court does its job correctly, it is not, any more than the conclusion of the major and minor premises of a syllogism is a “newly created proposition.” (Admittedly, it’s more complicated than just a simple process of deduction. Courts reason as much by analogy as by strict logic, and the “logic of the law has been experience,” to quote Justice Oliver Wendell Holmes. But the basic point is that judicial reasoning does advance by steps and new decisions result that, taken in insolation, might seem to create rights out of thin air but in fact don’t.)
The more sophisticated (or perhaps the more sly) critics of decisions like Obergefell v. Hodges argue that the Supreme Court should not decide issues that properly should be left to the democratic process. The issue of gay marriage was and is a contentious one; the states were and are sorting out this issue one by one; the court has no business stepping in and deciding the issue for the entire country in a sweeping “one-size-fits-all” decision. We should trust the democratic process to do its job. The court should follow, not lead public opinion.
This argument too has beguiling aspects. It was the central theme of Judge Wilkinson’s book, Cosmic Constitutional Theory, which we reviewed back in 2012. Democracy is a hard thing to criticize. Judges are appointed, and while some state judges stand for re-election, federal judges serve for life (barring serious misbehavior). Why shouldn’t the Supreme Court defer to the state legislatures on divisive issues like gay marriage (or abortion, for that matter)?
The answer is that at times it is among the highest duties of the courts to lead, not follow, public opinion. Consider two cases where the Supreme Court did not follow democratic consensus: Brown v. Board of Education, which held for the first time that “separate” schools were not “equal” and abolished, as a matter of constitutional law, the practice of desegregated schools; and Loving v. Virginia, already, mentioned, which ended state laws prohibiting interracial marriage. Had the court left desegregation to the democratic process, how much longer would have the odious practice of segregated schools persisted? Clearly, the voting majorities of southern states supported the practice. And had the court not ended miscegenation laws, how much longer would that restraint on liberty persisted? Who now questions the wisdom of both decisions?
Contrast these cases with several where the court bowed to public opinion. Among the most reviled of Supreme Court decisions is the 1857 case Dred Scott v. Sandford, in which the court held that escaped slaves remained property and must be returned to their southern owners. Equally reviled, the World War II case, Korematsu v. United States, a 1944 case that upheld the wartime incarceration (or, more politely, internment) of Japanese Americans. In both cases, public opinion and the democratic process blessed odious laws that today seem manifestly unjust. Admittedly, the court must act with caution, and often waits until the tide of opinion begins to move in the direction of its decisions. Even so, in its finest hours, the Supreme Court reaches outcomes that point the way to a higher morality. It may do so at the risk of harsh criticism, as it has in Obergefell v. Hodges. Heroic decisions teach as well as decide: because of Obergefell, future generations may find it just as odd that gay couples were ever denied the right to wed as today it seems unjust to us that a man or woman could be made property because of color of their skin or citizens imprisoned because of the shape of their eyes.