The Supreme Court Justices and Marriage Equality

Timothy Kincaid

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.


May 27th, 2009

Should the argument only go forward in the Federal Court system if we know that we will win. In my opinion, it should go forward in the Federal Courts ……. there is no perfect time.


May 27th, 2009

I’ve been reading the comments on Pam’s House Blend, and there’s a conspiracy theory afoot that Olson might be taking this case to lose rather than to win. I’m not going to make any conclusion of what his motivations are just yet, but I’m skeptical.

Make no mistake: If we lost this thing in the Supreme Court, we’d be f**ked. Marriage equality would be set back by decades.

Cheap Pearl

May 27th, 2009

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May 28th, 2009

AJD, we already lost in Baker V. Nelson. SCOTUS dismissed it on its merits as unsubstantial, which means it has to reverse that decision before any lower Federal Court can hear a case on Gay Marriage.

Necktie Knot

May 28th, 2009

My question is: who is bankrolling this? Federal suits don’t come cheap. I don’t doubt the sincerity of the participants but I’d still like to know where the money is coming from. This comes so quickly after the CA Supreme Court ruling it obviously has been in the planning for quite some time.

Priya Lynn

May 28th, 2009

They’re hoping to lose this and set a precedent against equal marriage. Most everyone agrees this suit is a loser and that can be their only motivation for going forward with it.

Mark F.

May 28th, 2009

We have mind readers on this board. Amazing!

In some sense, this argument is moot. You can’t stop people from proceeding with a lawsuit.

Priya Lynn

May 28th, 2009

Mark, its not a matter of mind reading, its a matter of observing the obvious. The suit’s a loser and there’s only one rational reason to procede with such a suit.


May 28th, 2009

Where’d you get your law degree again, Priya Lynn?

Priya Lynn

May 28th, 2009


Dan L

May 28th, 2009

I would point out that calling Justice Scalia’s dissent in Lawrence “an angry screed” as well as labeling him and Justice Thomas “anti-gay” is more than a little unfair.

Whatever one thinks of Scalia’s judicial philosophy, the man is undeniably a brilliant man, and I think it is unjust to dismiss his dissent in this case–or in any case, no matter how wrong he may be–as an “an angry screed.” Moreover, I think your quote about the “homosexual agenda” is taken more than a little out of context. Scalia made reasonably clear that he had absolutely no problem whatever with people pursuing the “homosexual agenda” through democratic means. He writes,

“Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more _require_ a State to criminalize homosexual acts–-or, for that matter, display _any_ moral disapprobation of them–-than I would _forbid_ it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change. It is indeed true that ‘later generations can see that laws once thought necessary and proper in fact serve only to oppress,’ and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.”

Bad legal reasoning it may be, but characterizing it as an “antigay,” “angry screed” strikes me as more than a little over-the-top.

Priya Lynn

May 28th, 2009

Dan, describing Scalia as anti-gay and his dissent as an angry screed is right on the money. Your characterization of him as “brilliant” is rather strange – no one seems more willing to put aside the rule of law to pursue a biased agenda than Scalia.


May 28th, 2009

“Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.”

In a more long-winded way, it reminds me of Carrie Prejean saying “no offense” before offending us. It’s quite obvious Scalia doesn’t think LGBTs have any suspect class rights at all under the federal constitution, and that’s all I need to know about him.

Timothy Kincaid

May 28th, 2009

Dan L,

I find the previous paragraph more telling of Scalia’s attitudes about gay citizens and whether they have any rights:

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U. S. C. §654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale, 530 U. S. 640 (2000). [emphasis mine]

Scalia finds anti-gay discrimination in public school employment to be “mainstream”.

If Scalia thinks that it is legal for States to set up gay persons as a class of people and to deny them equal access to state employment justified solely by the animus of “many Americans”, I am quite certain that he is adequately anti-gay as to find no protections for same-sex couples who wish to marry.


May 28th, 2009

Dan L,

It is entirely fair to describe Scalia as anti-gay. To describe him as anything other than anti-gay begs the question of what one has to do and say to qualify as anti-gay if Scalia gets a pass. Clarence Thomas, the least qualified member of the court and more or less another Scalia vote, is a routine embarrassment who has shown no regard for any oppressed person in America. His rulings qualify him as anti-gay.


May 29th, 2009

Scalia read his dissent in Lawrence out loud to the crowd. It was extraordinary as an action and inmistakably angry according to all were present.

Scalia uses the obvious conservative dodge- if you don’t like the court ruling, demand that the outcome be subject to the majoritarianism of a popular vote. Thing is, a vote can be just as motivated by ego as by concern for justice. So, not only does e.g. gay marriage have to be morally right, it has to please the egos of sufficiently many people. So Scalia’s appeal in Lawrence is frankly a corrupt appeal.

The USSC math is that Kennedy is the deciding vote. As per usual. I’m not so sure he’s safely categorized; his bias is well known, his core principles seem known only for the fact that they’re not terribly consistent from one case to the next.


May 29th, 2009

Yeah, how can you just assume a guy that goes against even the most basic rights for homosexuals has something against them? I mean, what about wanting them to be thrown in jail and denied even an attempt to fight discrimination makes you think he hates them?


May 29th, 2009

There never is a good time to bring the suit. But, more importantly, the make-up of the Court is likely not going to change for a long, long time, and it can probably only change for the worse. Scalia/Roberts/Thomas/Alito are the younger four members of the Court. They serve for life. Any of the justices who retire in the next 15 years will be the four liberal justices, barring one of the conservative four getting hit by a bus.

And if the case loses, it’s not like anything changes from what we have now.

Olson’s right: minorities shouldn’t be forced to wait at the back of the line while society catches up.


May 29th, 2009

Interestingly, the 2 cases before the CA Supreme Court could have a major effect on Kennedy and the SCOTUS. If one considers that the CA Supremes reversed their finding that found that same-sex couples had a fundamental right to the word “marriage,” that could pretty much spell defeat. Of course, they have Iowa’s unanimous ruling to look at too, not to mention rulings that didn’t go well for us in other states. Would be interesting.

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