The Supreme Court Justices and Marriage Equality
May 27th, 2009
Section 1 of the Fourteenth Amendment to the United States Constitution reads as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This amendment is home to the “Equal Protections Clause” and “Due Process Clause”. And it is under the language of this clause that Theodore B. Olson and David Boies seek to have Proposition 8 determined to be unconstitutional.
Now to me it’s a simple proposition. Gay persons – and couples – are entitled to the priveleges of any other citizen. And, if it up to me, I would probably argue more about how Proposition 8 is an abridgement of my privileges as a citizen than I would about the due process of law. And I’d probably lose.
But regardless of the merits of the arguments, ultimately it isn’t what I think, or what Olson and Boies think that about the application of these protections, it is what the nine Justices of the Supreme Court think.
It is not possible at this time to know the composition of the court should this suit ever reach it. Several members are quite elderly and some are not in good health and lawsuits of this sort can take years before they are heard.
But we can look to the present composition of the court and make some educated guesses about whether they would find such arguments compelling. To guide us, we can look to two significant previous rulings on gay issues that dealt with equal protections and due process.
In November 1992, the voters of Colorado passed Amendment 2 with 53% of the vote. This amendment to the state constitution disallowed sexual orientation as a basis to “claim any minority status, quota preferences, protected status or claim of discrimination”. The Colorado State Supreme Court invalidated the amendment on the basis that it violated the equal protections clause of the 14th Amendment. The state appealed to the US Supreme Court who, by a 6-3 split, found Amendment 2 unconstitutional, though for a different reason. Justice Kennedy wrote that the state had no rational reason to identify persons by a single trait – create a class – and to then deny them the right to even appeal for protection from the law.
Of those currently on the court, Justices Kennedy, Stevens, Ginsberg, and Breyer voted to overturn Amendment 2. Justice Souter also voted with the majority, but he has tendered his resignation.
Justice Scalia, on the other hand, found Amendment 2 to be “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores”. Justice Thomas agreed.
In June 2003, the Supreme Court declared that the sodomy laws of the State of Texas were unconstitutional by a vote of 6-3. Five justices, again Kennedy, Stevens, Ginsberg, Breyer, and Souter, found that it violated due process guarantees, specifically the “substantive due process” right to privacy. Justice O’Connor based her position on “equal protections”, a position which she conceded raised the issue of marriage rights.
Justice Scalia wrote an angry screed in which he accused the court of having “largely signed on to the so-called homosexual agenda.” Thomas called the law “uncommonly silly” but found no right to privacy in the constitution.
Based on those two decisions, we can assume the following:
- Justices Thomas and Scalia to not believe that laws created solely to disadvantage gay persons are contrary to any protections found within the Constitution.
- Justices Kennedy, Stevens, Ginsberg, and Breyer are generally more sympathetic to the plight of persons who are singled out for exclusion from society. But we cannot make the assumption that this sympathy will extend to the definition of civil
- Appeals to equal protections – the appeal that I would think most closely applies to marriage rights – do not seem to be the arguments that speak strongest to those on the court likeliest to be sympathetic.
And we have three lesser known quantities: Justices Alito and Roberts and judicial nominee Sotomayor. Reputation places the three as conservative, moderate, and liberal, respectively.
Justices have a habit of defying reputation and presumed ideology. However, I think it safest to assume that Justice Alito can be counted as a vote against marriage equality. And there is simply not adequate record to determine whether Roberts or Sotomayor (if confirmed) would be inclined to see protections for gay people in the Constitution, much less marriage rights.
So, we approach the court knowing that two are definitely anti-gay in their rulings, one is likely to be so, four have sympathy to gays who are excluded from due process but may not extend that sympathy to marriage, and two are an unknown quantity. This is not the court that I would like to approach with questions about my rights.
Considering that we have a deck stacked against us, we have to wonder at the wisdom of going to the Supreme Court at this time. Should we lose, it is a greater loss than a state’s denial of equality. Should the Court reject our argument, not only will it set federal precedent that is likely to require decades to reverse, but it will give guidance to such other state courts as are approached with an appeal to our equality and liberty.
So I concur with Jim and with other prominent gay organizations that our best bet is to appeal to our neighbors and change hearts and minds before we go to the Supreme Court.