Next week the Supreme Court will hear oral arguments in four cases presenting the question whether the Constitution requires states to license and recognize same-sex marriage. As I noted in my Verdict column when the Justices agreed to hear these cases earlier this year, the result is essentially a foregone conclusion: Nearly all well-informed observers expect the Court to find a constitutional right to same-sex marriage.
Important legal questions will undoubtedly remain open, including some for legislators—such as whether to grant LGBT Americans protection against private discrimination, and if so, whether to provide exceptions from compliance with such anti-discrimination laws to people motivated by religious or other objections to same-sex marriage or homosexuality.
Those questions are important, indeed urgent, but in this column I would like to step back and ask a different set of questions. How did we get here as fast as we did? And what does the journey towards a right to same-sex marriage say about the broader relationship between social change and legal change?
An Accelerating Pace of Change
Although human beings have formed intimate same-sex bonds for millennia, at least since late antiquity (when Christianity became the official religion of the Roman Empire), Western social and legal norms have condemned homosexuality. Attitudes in the United States began to change in the late twentieth century, with the Stonewall riots of 1969 marking the conventional turning point when the modern gay rights movement was born.
Even so, as late as 1986, the Supreme Court, in an infamous majority opinion by Justice Byron White, dismissed the notion that there might be a constitutional right of two adult men to engage in consensual sex as “at best, facetious.” That opinion, Bowers v. Hardwick, would remain the law of the land for seventeen years.
In 2003, when the Supreme Court finally overruled Bowers, Justice Kennedy’s majority opinion in Lawrence v. Texas was careful to state that the case did not involve marriage. Five years later, in the 2008 primaries and general election, none of the serious major-party candidates for President—Republican or Democratic—publicly supported same-sex marriage, even as a matter of legislation. And as recently as just two years ago, when the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA), the majority opinion (again written by Justice Kennedy) contained enough ambiguity that Chief Justice Roberts in dissent could characterize it as resting ultimately on principles of federalism, rather than individual rights. Meanwhile, a different majority of the Court that same day invoked a procedural objection in order to duck a case from California that directly presented the core constitutional question it will take up next week.
Thus, the road to same-sex marriage looks like it has been a long slow slog, followed by a sprint. The issue was placed on the national agenda in the early 1990s, when a state court ruling in Hawaii led a panicked Congress to enact DOMA, but for roughly two decades, the fear of same-sex marriage was a bogeyman invoked by right-leaning politicians to turn out socially conservative voters. Then, in just a couple of years, opposition to same-sex marriage came to be regarded as nearly as retrograde as racism. Where the Justices in 2003 and even 2013 might have worried about backlash if they recognized a constitutional right to same-sex marriage, today they have more to fear if they fail to recognize such a right.
Political Tipping Points and Courts
The recent change in attitudes towards same-sex marriage is remarkable for its speed, but that may simply reflect the well-known “tipping point” phenomenon popularized and arguably oversold by Malcolm Gladwell. Even if some of Gladwell’s examples are controversial, however, the underlying phenomenon undoubtedly exists. For example, ice remains ice as one heats it from sub-zero temperatures to above 32° Fahrenheit, and then it rapidly melts.
Tipping points are especially likely in the political realm because of majoritarianism. A position that lacks support will meet with little success, even as it gains considerable support, but then, when popular opinion crosses the fifty percent threshold, rapid legal change can ensue.
The courts are part of this process. Judges and Justices take account of public opinion both directly in some domains—as when determining whether a punishment is consistent with the “evolving standards of decency” that the Court evaluates in Eighth Amendment cases—and indirectly—as when they decide to duck a question because they regard the answer that the law should give as broadly unacceptable to the public.
Judges and Justices also shape public opinion. Justice Louis Brandeis famously referred to government as an “omnipresent teacher,” and while there is no shortage of criticism of the courts, important judicial decisions can catalyze political action. At the very least, they become part of a wider conversation that includes politicians, activists, journalists, scholars, and others.
Finally and perhaps most obviously, judges and Justices live in the same social world as the rest of us. As more and more LGBT Americans came out, judges and Justices came to understand that these people could be counted among their neighbors, friends, and family members. A judge or Justice who is asked to preside over the same-sex wedding of a former law clerk cannot help finding the experience relevant to how he or she views the constitutionality of a law forbidding such a ceremony.
Are Constitutional Rights Superfluous?
The fact that recognition for constitutional rights comes as a result of changes in public opinion points to a limitation of judicially enforced rights: They are likely to be unavailable when they are most needed.
Constitutional scholars tend to fret over what Alexander Bickel called the “countermajoritarian difficulty”—the worry that judicial review of legislation in the name of the Constitution substitutes the judgment of unelected judges for the judgment of politically accountable government officials. But once one understands that courts cannot and do not get too far out in front of public opinion, one sees that there is at least as much to fear from judicial timidity as from judicial activism.
In times of public panic, the courts are likely to back off, as they did during the Red Scares of World War I and the McCarthy era, as well as during the World War II internment of Japanese Americans. In such times, the Bill of Rights has too often proved to be what James Madison called a mere “parchment barrier.”
One might even conclude that by the time a justice movement has succeeded in obtaining substantial political support for its cause, the protection afforded by constitutional rights are no longer needed. Chief Justice Roberts toyed with this idea during the oral argument in the 2013 DOMA case, when he objected to the proposal that laws discriminating against LGBT Americans should be subject to exacting judicial scrutiny on the ground that it would be unnecessary. “As far as I can tell,” he said, “political figures are falling all over themselves to endorse” a right to same-sex marriage.
The Chief Justice was mistaken in his apparent conclusion. The fact that the cause of LGBT equality has more supporters now than in the past is no reason to conclude that anti-LGBT bias, as reflected in law, has disappeared. More Americans support racial equality now than a century ago, but racial inequality remains a profound fact of American life.
LGBT Americans should not be robbed of the judicial fruits of their social and political victory simply because they won that victory in the same way that other justice movement activists did: by dint of hard work over many years to persuade a majority of their fellow Americans—including, it appears, a majority of those Americans who sit on the Supreme Court—that their claims are just.
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