The Gay Marriage Conundrum

On Monday, Perry v. Schwarzeneggerthe first legal challenge to the constitutionality of Proposition 8, California’s 2008 ballot initiative banning gay marriage—began in San Francisco. No matter what the outcome, the case is expected to make it to the Supreme Court on appeal.

Ironically, many liberals have been the most outspoken critics of the lawsuit, and for a very good reason: There is a very good chance that this lawsuit will not succeed. After all, 45 states have laws prohibiting gay marriage, only one court (the Iowa State Supreme Court) in the entire country has ruled against gay marriage bans, and the Supreme Court is not very fond of staying out in front of public opinion. The most famous example of the Court’s social progressiveness*—Brown v. the Board of Education—had Chief Justice Earl Warren as a champion; forgive me for skepticism, but it’s hard to imagine John Roberts going to bat for this case.

*For all the talk about “judicial activism,” the Supreme Court, which theoretically could to be the most progressive branch of the federal government, has in many noteworthy cases, been completely reactionary and utterly, offensively wrong. The Dred Scott Case, Korematsu, Bowers v. Hardwick: These cases were controversial even at the time and seem absolutely unconscionable in retrospect.  

The current composition of the court is similarly unfavorable to the plaintiffs case: Four of the nine current justices—Scalia, Alito, Roberts, and Thomas—can be counted on to rule in defense of Proposition 8, and Anthony Kennedy, the generally conservative (and always Catholic) swing vote, would likely join them.* The makeup of the court could change by the time this case reaches them, but given the relative—by Supreme Court standards—youth of Roberts, Alito, and Thomas, this isn’t very likely. The next two justices to retire will likely be liberals Ginsburg and Stevens.

*Bear in mind that any judicial analysis of mine is wholly speculative. I’m not even the best judicial scholar at NPI.

So if the case does reach the Supreme Court, there is strong chance that the Court will uphold Proposition 8. This would, of course, be a huge setback to the push for gay marriage. A precedent set by the Supreme Court is binding to every federal court. It’s even likely that a negative ruling could sway legislators on the fence against supporting the cause.

Many people think that the best course of action in the fight for gay marriage is to try and win at the ballot-box. Proposition 8, after all, only passed by 4% of the vote, and that was with a “No on 8” campaign that many people questioned. A more concerted and focused campaign, some say, could end up repealing Proposition 8 and other laws like it. The best opportunity for establishing gay marriage rights, then, may be to try to rationally appeal to the voters.

It is probably true that Proposition 8 is more likely to be overturned by popular vote than by a judicial decision. It’s also true that losing such a court case could set the movement back several steps. But really, none of that should matter.

Strategically, this case may be a mistake, but normatively speaking, it is the only sensible choice. On a purely rational level, this case ought to be decided quite simply in the plaintiff’s favor. The Supreme Court has already said, in Loving v. Virginia, that marriage is a “fundamental right,” meaning that it falls under strict scrutiny and can only be abridged by a “compelling government interest.” Compelling government interests that the Court has recognized include national security, public safety, and overcoming inequality. No argument offered by Proposition 8’s supporters approaches such a standard. 

Even if the Supreme Court refuses to use strict scrutiny (on the grounds that the only fundamental right is to marry someone of the opposite gender), though, I cannot even see an argument that Proposition 8 meets the minimum level of scrutiny, the rational-basis test. By this standard a law must merely be “rationally related to a legitimate government interest.” Well, what exactly is the “legitimate government interest” advanced by Proposition 8?

The defense lawyers in Perry have been making the same argument most gay marriage opponents make: that gay marriage would in some way harm opposite-sex marriage. But in a pretrial hearing, when asked how, the defense could not come up with a single reason.

If the legal arguments for Proposition 8 are so specious, then there should be no danger of the court ruling against the plaintiffs. But Justices are human too, and subject to the same biases and closed-mindedness as voters. The Supreme Court is certainly fallible. The four conservative members of the Court are unlikely to support gay rights. Even in the landmark Lawrence v. Texas, a major victory for gay rights, Justices Scalia and Thomas dissented (Roberts and Alito were not yet on the Court). In his dissent, Scalia accused the court of having “signed on to the so-called homosexual agenda.” If Scalia and Thomas refuse to strike down laws interfering with private sexual activity, then it won’t likely overturn marriage restrictions.

The truth is, of course, that Proposition 8 is motivated largely by animus and homophobia, by fear of what Scalia called “the homosexual agenda.” There is no rational reason to proscribe same-sex marriage.* So the idea that this is something that should be settled by appealing to voters is senseless—you cannot rationally argue against someone’s prejudice. Not only is it doomed to be ineffective, but it’s also pretty demeaning. Margaret Talbot’s great piece on this case in The New Yorker follows canvassers trying to go door-to-door on the issue: They get insulted, chased off porches, and threatened with eternal damnation. I suppose many canvassers get treated this way (who likes those people anyway?), but these people are doing it for their identity. It’s like asking Jews to canvass in Nazi Germany.

*Another ridiculous claim by the defense in this case is that the purpose of marriage is to “channel naturally procreative sexual activity between men and women into stable enduring unions.” Right, because every married woman fondly remembers when the priest asked: “Do you take this man to channel your naturally procreative sexual activity into a stable, enduring union for the sake of begetting, nurturing, and raising the next generation?” It’s the most romantic moment of anyone’s life. 

This really isn’t an issue that should be left up to a vote. Marriage is a personal choice, and shouldn’t be subject to government regulation. By trying to get Proposition 8 repealed through popular vote, gay marriage advocates deny this premise and undermine their own cause. If there is any point to judicial review at all, it is to curb excessive and irrational legislation like Proposition 8. The Supreme Court may get this issue wrong, but that doesn’t mean the rest of the country should join them. 

7 responses to this post.

  1. Posted by Josh on January 16, 2010 at 2:17 PM

    What are you ultimately concluding, particularly when you say “The Supreme Court may get this issue wrong, but that doesn’t mean the rest of the country should join them”? How does one reconcile the fact that the Supreme Court is almost certainly going to rule unfavorably with the idea that the very purpose of judicial review is to curb such prejudicial legislation such as Prop 8, as you say? Is the answer just to ignore strategic considerations (i.e. that it might not be wise for the Supreme Court to hear case on Prop. 8 now given their composition) and go for judicial review because of its institutional appropriateness and, if so, don’t you need to reason through and defend such an approach?


    • Posted by John S on January 16, 2010 at 4:30 PM

      My conclusion isn’t that strategic considerations should be totally ignored. For example, if there were a strong chance that the composition of the Court would change in the next few years to favor the plaintiff’s cause, then it may be appropriate to wait a few years. But just because something is strategically advantageous doesn’t mean it is morally appropriate. If something shouldn’t be legislated on, then it shouldn’t be legislated on no matter which way the Court is likely to rule.


  2. Posted by Tim on January 17, 2010 at 9:08 PM

    I think my cousin summed up the Prop. 8 position: “I don’t have any rational arguments to defend this, but I don’t want gays getting married.”


  3. Posted by doc on January 17, 2010 at 10:52 PM

    Why would gays want to get married with a 50% divorce rate and all the legal expenses that accompany divorce litigation? Also, when you have people like Limbaugh and Robertson espousing “family values”, who would want to start a new family?!!


  4. […] after John S worried that the Supreme Court was going to make a terrible decision, they made a different terrible […]


  5. […] can be dealt with that forego the democratic process. Whether that means solving problems by using the judiciary, small community organization,* global charities, economic activism, or even private enterprise. […]


  6. […] New York passed a same-sex marriage law last week, and President Obama’s views on the subject are now “evolving” (for anyone who believed his previous opposition was anything other than political). It looks like public opinion is finally turning, not that it should matter. […]


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