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The Supreme Court’s other shoe

- - Wednesday, June 18, 2014

When the Supreme Court ruled last year in United States v. Windsor that Section 3 of the federal Defense of Marriage Act was unconstitutional, it announced that its “opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Because the definition and regulation of marriage has almost exclusively been within the province of the States, the Court noted repeatedly, it violated equal protection for the federal government not to give the same recognition to same-sex marriages sanctioned by a particular state that it gave to heterosexual marriages. On that reasoning, States that choose a different policy judgment about marriage, one that would preserve marriage as an institution between one man and one woman, should remain free to do so.

So why has there been a steady stream of lower court decisions in the year since Windsor was decided that have rejected that reasoning and the Court's explicit statement that the holding in Windsor was confined to same-sex marriages made lawful in a particular State? Justice Scalia's dissenting opinion provides some insight (and, quite frankly, much ammunition for lower courts bent on redefining marriage). The majority of the Court, led by Justice Kennedy, will let the other shoe drop—holding that the Constitution requires every state to redefine marriage to encompass same-sex relationships—if it thinks it can get away with it.

There are several encouraging signs that lead me to be cautiously optimistic that the Court will not take such a radical step, and that the dozen or so lower courts that have boldly anticipated otherwise will be overruled. First, the Supreme Court itself already addressed the identical question more than forty years ago, in the case of Baker v. Nelson, which held in a summary disposition that a challenge to a state's one-man/one-woman definition of marriage did not even raise a substantial federal constitutional question. However much the lower courts try to write that decision out of the books, it remains binding precedent, and the Supreme Court has been unbelievably clear about how lower courts are to treat such precedent: "the lower courts are bound by summary decisions by this Court 'until such time as the Court informs (them) that (they) are not.'"

Second, when the federal district court in Utah struck down Utah's marriage law a few days before Christmas last December, and the State's request for a stay was denied by both the district court and the court of appeals, the Supreme Court unanimously issued a stay, blocking the district court's judgment. It is quite rare for the Supreme Court to issue a stay when both lower courts have refused to do so, and the standard that it applies is whether the state had demonstrated a likelihood of success on the merits. The stay issued by the Supreme Court in the Utah case therefore outweighs all of the district court decisions that have recent invalidate state marriage laws combined.

Third, Justice Kennedy's own opinion in Windsor offers powerful defenses of true marriage, defenses upon which States who adhere to the long-standing view should be able to rely. "For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization," Justice Kennedy wrote. This understanding has for centuries "been deemed both necessary and fundamental" to the institution's purpose, he added. As long as men and women remain uniquely capable of begetting children from their sexual union, the State has a perfectly legitimate—indeed, compelling—interest in fostering the institution that, throughout history, has proved most conducive to the welfare of the children that result and, hence, to civil society as well. A large majority of States continue to adhere to this common-sense understanding of marriage, rooted as it is in basic biology. It would be an extraordinary exercise of raw political power for the Court to negate the considered judgments of such a large portion of the nation.

Fourth, Justice Kennedy himself authored the dissenting opinion in the parallel case decided last June addressing the constitutionality of California's Proposition 8, which was a state constitutional provision like those in Utah, Virginia, and elsewhere currently making their way to the high court. The majority in the case held that the proponents of Proposition 8 did not have standing to take the case up on appeal when the Attorney General of the state refused to do so. Justice Kennedy dissenting, expressing his view that initiative proponents did have standing and that the Court should have considered the merits of the constitutional challenge. Two of the Justices who voted to deny standing (Justices Ginsburg and Kagan) are widely believed to be strong supporters of finding a right to same-sex marriage in the Constitution. If Justice Kennedy was really prepared to be the fifth vote striking down Proposition 8 (and therefore the marriage laws of more than 30 other states), does anyone really believe that one or the other of those two Justices would not have found a way to recognize standing by the Prop. 8 proponents so that the case would have become the Roe v. Wade of same-sex marriage?

Which brings me to my final reason for being cautiously optimistic. We are now more than forty years past the Supreme Court's decision "legalizing" abortion on demand as a constitutional right, and it remains one of the two or three most controversial decisions ever rendered by the Court. It has infected our politics for decades, in races from the Presidency down to dog catcher. It has politicized the judicial nomination and confirmation process in a way that threatens our very institutions of government. It is hard to imagine that the Court is keen on opening up another similarly-contentious front in the culture wars. Much better to let this issue be settled by the give and take of the political process. Indeed, less than two months ago, Justice Kennedy weighed in on the importance of letting the political process decide controversial social issues. In upholding Michigan's ban on race-based affirmative action, he wrote for the Court's majority: "This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court's precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters . . . Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters' reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate." Substitute "same-sex marriage" for "racial preferences" in that passage, and you can see why I am cautiously optimistic that the Court in general, and Justice Kennedy in particular, will not invent a new constitutional right and pretend that the Constitution already settled back in 1868 when the Fourteenth Amendment was adopted the contentious policy debate in which we find ourselves about the very definition and purpose of marriage.

The March for Marriage is designed to keep the Court on notice that the American people do not want such basic policy judgments taken away from them, lest, as Abraham Lincoln warned a century and a half ago, we cease to be our own rulers, having to that extent practically resigned out Government into the hands of the Supreme Court. The "other shoe" that the Court will hear from the thousands of people marching on the Supreme Court is not the other shoe Justice Scalia predicted of the Court constitutionalizing same-sex marriage, but the soles of the millions of Americans who have voted over the past decade to reaffirm the basic truth about marriage and the benefits it provides to parents, to society, and especially to children.

Dr. Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University's Fowler School of Law (though the views expressed here are his own), the founding director of the Claremont Institute's Center for Constitutional Jurisprudence, and Chairman of the Board of the National Organization for Marriage.

This Op-Ed was submitted as part of a Special Section from The Washington Times Advocacy Department.