Marriage Equality: Will Shift in Public Opinion Sway the Supreme Court?

By Anna Stolley Persky

When Megan Wallace and Mary Callsen got married, it was a quiet occasion. They had, after all, been together for 13 years already. They considered themselves not just married, but part of a thriving family. Their twin daughters, six years old at the time, attended the courthouse ceremony held last spring.

In Washington, D.C., where the actual ritual occurred, Wallace and her partner Callsen are considered married. And, as of Election Day, their legal marital status also will be recognized in Maryland, where they both work.

Wallace, a lawyer, and Callsen, a doctor, say they are experiencing a “huge sense of calm.” “It feels like a huge relief because this is the way it is supposed to be, because we’re a family, just like any other family,” says Wallace, who practices estate planning, probate, and business law at Wallace Law, LLC, in Rockville, Maryland.

For generations states only permitted marriages between one man and one woman. But recently, a handful of states and the District of Columbia have legalized same–sex marriage through the legislative process. On November 7, Maine, Maryland, and Washington state made history by becoming the first states to legalize same–sex marriage in statewide referendums.

As advocates on both sides willingly admit, the question of whether same–sex couples should be able to marry is turning into a hard-fought ideological and political battle.

“The issue of gay marriage is one of the most important civil rights questions of this decade,” says Susan Bloch, a professor specializing in constitutional law and the equal protection clause at Georgetown University Law Center in Washington, D.C. “I think we will look back on this period and marvel at how restrictive our laws were, much the way we used to have laws that prevented interracial marriage.”

Wading Into a Cultural Shift
While gay rights advocates are trumpeting what they describe as a shift in public opinion, advocates of traditional marriage are girding for further legislative fights. They point out that North Carolina, as recently as May 2012, approved a constitutional amendment defining marriage as solely between a man and a woman.

Meanwhile, the center of the battle over same–sex marriage has shifted, for the time being, away from the legislature and public referendums and into the judiciary. In December the U.S. Supreme Court agreed to hear two cases on questions relating to same–sex marriage. 

The first case, United States v. Windsor[1], challenges a federal law passed in 1996 and signed by President Bill Clinton. The Defense of Marriage Act (DOMA) denies federal benefits for same–sex couples; it also bars federal recognition of gay marriages and says that states cannot be forced to recognize same–sex marriages from other states.

“The question [for this case] is whether the federal government can single out gay marriage as being the only category of marriage for which federal agencies refuse to accept the state’s own definition,” says Nan Hunter, a constitutional law professor at Georgetown Law.

The second case, Hollingsworth v. Perry,[2] concerns the constitutionality of California’s ban on same–sex marriage known as Proposition 8. Incidentally, the challengers of Proposition 8, passed by California voters in 2008, are being represented by two heavyweights in the appellate community: former U.S. Solicitor General Theodore Olson and noted Supreme Court attorney David Boies. Many observers had predicted that the High Court would not agree to hear this particular case.

“I was surprised that the Court granted cert in the California case,” Bloch says. “I think the Court granted cert … because it presents interesting, complex constitutional issues and is being litigated by two of the best Supreme Court advocates in the country.”

By agreeing to hear not just one, but two cases involving same–sex marriage, the Supreme Court appears to be on the precipice of delving into the thorny and socially complex issue. However, the Court, while accepting the cases for review, specifically warned lawyers to be ready to argue preliminary questions, such as whether the parties have standing.

“I don’t think the current Supreme Court is ready to find a constitutional right to gay marriage, although I would predict that a future Supreme Court is likely to see things differently,” Bloch says. Still, Bloch predicts that the current Supreme Court would strike down at least portions of DOMA.

Gay rights advocates say there’s always the chance that the Court would go even further by finding—or hinting—that there is an inherent right to marriage for same–sex couples that can’t be denied. Advocates say the importance of this right should not be underestimated, especially when it comes to the stability and health of same–sex couples’ relationships and families.

As Wallace points out, “I was already committed, but there’s something in the strength of being able to commit legally to each other, to our family.”

Meanwhile, advocates of “traditional marriage” say they believe the Court will recognize the sanctity of marriage and the value of maintaining DOMA as it stands. In addition, they express a concern for judicial meddling in legislative matters, states’ rights, and the will of U.S. citizens.

“My hope is that the Supreme Court does not choose to impose same–sex marriage upon the several states and territories, and the American people as a whole, by judicial fiat,” says Austin R. Nimocks, senior legal counsel and interim vice president of the Center for Marriage and Family at the Alliance Defending Freedom (ADF) in Washington, D.C. 

For now, legal analysts and advocates following the cases agree, for the most part, that it’s difficult to predict how the Court will decide.

Appointed to the Court by President Ronald Reagan, Justice Anthony Kennedy recently has been the swing vote on a number of social issues. He also has written Court opinions that depict him as friendly to gay rights issues.

“It remains to be seen what will happen, but we can say this—all eyes are once again on Kennedy,” says Dale Carpenter, a constitutional law professor specializing in the First Amendment and sexual orientation and the law at the University of Minnesota Law School. “In all likelihood, he will be the fifth vote, either way.”

At present, nine states and the District of Columbia have legalized marriage between gay couples. While the overwhelming majority of states still do not allow same–sex marriage, gay rights advocates cite polls that indicate a shift in public opinion on the issue.

In 2012 the Pew Forum on Religion & Public Life released survey results showing that 48 percent of individuals polled were in favor of same–sex marriage, while 44 percent were not. The numbers were up from the previous year: In 2010, 48 percent opposed same–sex marriage, while 42 percent favored it.

Some observers also say that the Election Day results show a public that is becoming increasingly open to same–sex marriage. In Maryland, voters narrowly upheld the state’s law allowing same–sex marriage. Maine and Washington voters also affirmed same–sex marriage in their respective states. Minnesota voters rejected a constitutional amendment banning same–sex marriage. In addition, Wisconsin elected the country’s first openly gay senator, Democrat Tammy Baldwin.

“There has been a real shift in public opinion over gay marriage, especially among the younger generation,” says Nancy Polikoff, a professor at American University Washington College of Law and an expert in lesbian and gay family issues. “I’m in the camp that same–sex couples will ultimately be allowed to marry in every state.”

Certainly, gay rights advocates are becoming more vocal in their push to legalize same–sex marriage.

“For many people, marriage is how they think about expressing their love and commitment,” says Mary Bonauto, civil rights project director for the Boston–based Gay & Lesbian Advocates & Defenders (GLAD). “And that includes committed same–sex couples. There is nothing like standing in front of family and friends and making that commitment to be there for the long haul and through thick and thin.”

But advocates for the “sanctity of marriage” point out that the majority of Americans, when asked whether to allow gay marriage in their state, have voted against it.

For some religious institutions, such as the Roman Catholic Church, there is no moral ambiguity on the issue. In November, the Holy See, the governing body of the Catholic Church, pledged to continue to fight attempts to legalize gay marriage.

The ADF, which describes itself as a “servant ministry” dedicated to “transforming the legal system and advocating for religious liberty, the sanctity of life, and marriage and family,” states on its Web site that no “court should undercut the democratic process by taking the power to preserve marriage out of the hands of the people.”

“Marriage recognizes the fact that men and women are different,” Nimocks says. “Marriage laws uphold the idea and the ideal that mothers and fathers are important and not replaceable. We have marriage laws to bring together the two different halves of humanity for a common good.”

“That purpose and that ideal have not changed from the very beginning to the very end of time. Humanity is a gendered species. Same–sex marriage by design removes half of humanity from the picture of the family. And, in the end, we are convinced that that is not what children require,” Nimocks adds.

History of Repression
The early history of the United States depicts little acceptance of gay and lesbian individuals. Some early laws penalized sexual relations between same–sex adults with death. Pennsylvania was the first state to repeal the death penalty for sodomy in 1786.

In 1779, before his time as president, Thomas Jefferson proposed a law to castrate gay men and to destroy the nose cartilage of gay women. In the decades that followed, a gay subculture gradually developed in this country, with the largest, and at times thriving, concentrations in larger urban areas such as New York, Chicago, and San Francisco.

In 1924 the Society for Human Rights in Chicago became the country’s first gay rights organization. Other organizations, such as the Mattachine Society and the Daughters of Bilitis, followed decades later. In the next decades, gay rights advocates began to speak up in larger numbers, staging demonstrations in the District of Columbia, New York, and elsewhere.

And, gradually, some laws did begin to change. In 1962 Illinois became the first state to decriminalize homosexual acts done in private between consenting adults. While some states followed Illinois, other states continued to have on the books consensual gay sex as a felony.

“This was a time of repression and fear for gay people,” Carpenter says.

To gay rights advocates, 1969 marked a crucial turning point. In June of that year, police conducted an early morning raid at Stonewall Inn, a gay bar in New York City’s Greenwich Village. The bar’s patrons fought back and, in the aftermath, protestors launched a series of demonstrations.

After the riots, activists organized to protest the treatment and to promote the rights of gays and lesbians. One year after the Stonewall riots, the first gay pride marches took place in New York, Los Angeles, and Chicago.

In 1970 two University of Minnesota gay student activists applied for a state marriage license. Their request was denied. The couple argued that Minnesota had no explicit requirement that marriage applicants be of opposite genders.

The case made its way to the Minnesota Supreme Court, which stated that marriage in that state was limited to opposite–gender couples.[3] Such a restriction, the court said, did not offend the Due Process Clause because procreation and childrearing are central to the protection given to marriage. The U.S. Supreme Court dismissed the appeal for “want of substantial federal question.”

“It opened up the legal imagination to the possibility that one might make such a claim, and then it shut it down rather quickly,” Carpenter says. 

But Carpenter points out that in the 1970s gay rights advocates were less focused on marriage and more concerned with employment discrimination and sodomy laws. During the 1980 Democratic National Convention, Democratic leaders included the protection of gay rights in their party platform.

In the 1980s, the AIDS crisis swept through the gay and straight communities. Access to health care became a predominant issue within the gay community.

“The fight was about taking care of people who were sick and dying,” Carpenter says. “Fighting a public health menace, that was the focus.”

In the mid–1980s the Supreme Court decided Bowers v. Hardwick,[4] delivering a serious blow to the gay community. The case involved the constitutionality of a Georgia sodomy law criminalizing oral and anal sex between consenting adults.

In Bowers, an Atlanta police officer entered Michael Hardwick’s bedroom to serve a summons. The officer then arrested Hardwick and a male companion for sodomy. Hardwick filed a lawsuit in federal court challenging the constitutionality of the Georgia sodomy law. The case made its way up to the Supreme Court, which ruled, 5–4, that there was no fundamental right to engage in homosexual sodomy.

Justice Byron White, writing for the majority, said that “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”

In his concurrence, Chief Justice Warren E. Burger wrote that “[t]o hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” The Georgia law was allowed to stand.

Justice Lewis F. Powell Jr. was the swing vote in that case. He later said that he regretted his decision to join with the majority.

“According to some of his former law clerks, the decision came at the end of his career, when he was old and tired, and he just caved in at the end,” Bloch says.

Years later, gay marriage advocates achieved their first major victory with Baehr v. Lewin.  

Two lesbian couples and one gay male couple sued the state of Hawaii, contending that the state’s refusal to grant them marriage licenses violated their fundamental right to marriage. The case went to the state’s highest court.

In 1993 the Hawaii Supreme Court held that a state could not deny gay couples the right to marry each other because doing so discriminated on the basis of gender.

“Hawaii took everyone by surprise,” Bonauto says. “Gay people had a lot of hope after that.”

But that was not the last word on same–sex marriage in the Aloha State. In 1998 Hawaii voters approved a constitutional amendment allowing the legislature to enact a ban against same–sex marriage. After that, the Hawaii Supreme Court found that the state constitution no longer protected gays and lesbians trying to get married. In 2011 the state legalized same–sex civil unions.
       
Defending Traditional Marriage
After the Hawaii decision, supporters of traditional marriage grew alarmed and advocated for decisive action from legislators. The congressional record is replete with concern over the question of states having to give “full faith and credit” to same–sex unions from other states.

“Should we let three judges in Hawaii decide to redefine marriage, not only for the people of Hawaii, but for the rest of the country as well?” asked Rep. Charles Canady (R.–Fla.) during a House Judiciary subcommittee hearing in 1996.

That same year Congress passed, and President Clinton signed, DOMA. Under the law, no U.S. state or political subdivision is required to recognize a same–sex marriage from another jurisdiction. In addition, section 3 of DOMA codifies marriage as a legal union between a man and a woman for federal purposes, such as Social Security survivor benefits and health benefits for federal workers’ spouses.

To Hunter and Polikoff, the law was clearly passed to express moral disapproval of same–sex marriage.

“There’s no question from the legislative history that the law was motivated by animus toward gay people and fear of the legalization of gay marriage,” Hunter says.

The states quickly followed suit with their own gay marriage bans. “The issue caught fire,” Bonauto says. “States began going wild forbidding same–sex marriages.”

As Carpenter puts it, state legislators and some religious organizations acted like “same–sex marriage could spread like a flu across the country.”

Nimocks and other supporters of gay marriage bans cite specific precedent for the validity of preserving marriage as a union reserved for one man and one woman. In New York, for example, the Court of Appeals found, 4–2, that a ban against gay marriage does not violate either the equal protection or due process clause.

“The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father,” wrote Judge Robert S. Smith in Hernandez v. Robles.[5] “Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.”

Meanwhile, the Supreme Court set the stage for overruling Bowers in 1996. In Romer v. Evans,[6] the Court found unconstitutional an amendment to the Colorado state constitution that would have prevented any city, town, or county in the state from taking action to recognize gays and lesbians as a protected class.

Writing for the majority, Justice Kennedy concluded that the amendment could only have been passed with the ultimate goal of harming a “politically unpopular group.”

“Before Romer, there was a string of almost never-ending losses. It built up the impression that equal protection cases involving sexual orientation were extremely difficult to win on this issue,” Hunter says. “But Romer just completely blew that out, especially because of the souring rhetoric in the opinion. Romer was an enormously important shift in what everyone perceived to be the attitude of federal courts.”

And then, in 1999, the Vermont Supreme Court ruled that same–sex couples are entitled under the state constitution to “the same benefits and protections” granted to different–sex couples. The state’s highest court told the state legislature to create a way for gay couples to unite, and then receive the same statutory rights as married couples.[7]

Following the ruling, the state legislature, after a very contentious debate, created a process for granting civil unions to gay couples. Once the bill passed, state Rep. George Allard, a vocal opponent, said, “This is a sad, dark day for the state of Vermont, and may God help us all.”

The ruling was groundbreaking at the time, but other states failed to follow Vermont’s path, and gay activists continued to rally forces to fight for marriage, not civil unions.

“We all would have preferred to have the court say that equality means equality. Why create a separate system for a minority group?” Bonauto says.

Nimocks agrees that civil unions do not assuage either side. “Nobody wants civil unions,” Nimocks says. “Those who support marriage are not advocates for civil unions, and those who support same–sex marriage no longer advocate for civil unions or domestic partnerships.”

Right to Intimacy
Another precedent–setting ruling from the Supreme Court came in 2003, in a case that had everything to do with consensual sex and nothing, on the face of it, to do with marriage.

In Lawrence v. Texas,[8] the Court found that states could not criminalize sexual intimacy between partners. The case involved two gay men, Tyron Garner and John Lawrence, who were discovered by police having sex in Lawrence’s apartment.

In a 6–3 ruling, the High Court struck down a Texas sodomy law. Overruling its prior decision in Bowers, the majority found that the law violated the due process clause and struck down sodomy laws in 13 states.

Writing for the majority, Justice Kennedy explained that Garner’s and Lawrence’s “right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention.”

“So the Supreme Court was putting same–sex relationships on a par, at least to some extent, with opposite–sex relationships,” says Carpenter, who has written a book on the case. “The case removed one huge roadblock on the path to same–sex marriage. If we have the right to intimacy, why don’t we have the right to commit to each other, love each other, and ultimately marry?”

That same year the Supreme Judicial Court of Massachusetts ruled in Goodridge v. Department of Public Health[9] that the Massachusetts constitution required marriage to be extended to same–sex couples. The Bay State thereafter became the first in the country to grant marriage licenses to same–sex couples.

“What happened in Massachusetts, by and large, was an outbreak of happiness. Celebrating weddings is a happy occasion,” says Bonauto, who argued the case for GLAD. “What surprised people was the amount of joy, pure joy, at being able to marry.”

But as with most legal skirmishes, the battle has found its way to the Supreme Court. The Court is expected to hear the pair of same–sex marriage cases in the spring, and announce its decisions by late June.

Most observers expected the Court to pick up the Windsor case, involving the hastily passed DOMA. That case involves Edith Windsor and Thea Spyer of New York, who had been partners for decades. The pair was married in Canada in 2007, and two years later, Spyer passed away. Windsor was forced to pay more than $363,000 in federal estate taxes because DOMA does not allow the Internal Revenue Service to recognize her as a surviving spouse. Specifically, section 3 of DOMA defines marriage as a legal union between one man and one woman. A federal appeals court previously found section 3 unconstitutional and had ruled in Windsor’s favor.

There has of late been disagreement among the circuit courts on DOMA’s legality, especially regarding section 3.

For Bonauto and other advocates of same–sex marriage, the cases before the Court involve more than marriage—they involve civil rights.

“We don’t see this as a marriage case. This is a case of federal discrimination against same–sex couples legally married by their states. What federal interest is there for DOMA to treat marriages of same–sex couples differently from all other marriages, even though state marriage laws vary?” Bonauto says of the Windsor case. “DOMA was also effectively an invitation to states to disrespect the marriages of same–sex couples, and it was accepted with alacrity.”

Meanwhile, the Supreme Court’s decision to review Hollingsworth, the case from California, came as a bit of a surprise to some Supreme Court observers. The case involves Proposition 8, a ban on gay marriages approved by California voters and which amended the state’s constitution. In 2010 a district court found Proposition 8 unconstitutional, and the U.S. Court of Appeals for the Ninth Circuit agreed.

“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California,” stated the Ninth Circuit panel in a 2–1 decision in February 2012.

As Supreme Court observers point out, the Court has a plethora of options in handling the case, from striking down all gay marriage bans to upholding Proposition 8, to punting the entire controversy back to a lower court on procedural grounds.

Return to ‘Natural State’
Advocates for traditional marriage feel that the law and public opinion are on their side. Nimocks cites the Supreme Court decision in Loving v. Virginia[10] as precedent for the Court’s traditional view of marriage. In that case the Supreme Court, in a unanimous decision, ended all race–based restrictions on marriage in this country.

“The Supreme Court returned marriage to its natural state, which is one man and one woman without racial restrictions,” Nimocks says. “The Court specifically says that marriage is fundamental to our existence and survival. The Court is talking about the procreative aspect of marriage, which exists only in the context of one man and one woman.”

Nimocks also points out that in the 19th century, the Court repeatedly rebuffed challenges to marriage laws by polygamists, and has continuously refused to alter its traditional definition. Nimocks says he is hopeful that the Court will, at the very least, uphold the provisions of DOMA. Besides legal precedent, Nimocks cites the importance of public opinion in this case because even the justices don’t live in a vacuum.

“We expect the Supreme Court to maintain marriage in its natural state as between one man and one woman,” Nimocks says. “If you look back over the years, you have 31 states voting for the definition of marriage as between one man and one woman. That’s an important historical reference in terms of the heartbeat of America on a politically hot topic.”

Nimocks adds that the federal government needs to define marriage. “In order to do basic functions, there are places where the federal government must have a guiding definition of marriage,” Nimocks says.

One of the central questions facing the Court is whether it’s time to change the review standard for cases involving sexual orientation. Most observers say the standard for these cases is one step above a rational basis standard of review.

“Really, what the Supreme Court has been doing, without saying so, is applying rational basis with a bite,” Hunter says. “These cases will force the Court to face the standard of review question. Do you want to continue with rational basis with bite, or do you want to formally adopt heightened scrutiny for this classification as well?”

But Bloch predicts that the Court will not make any drastic changes to the standard of review. “I predict that the Supreme Court will strike down the part of DOMA that denies federal benefits to gay couples who are legally married under state law. Such a decision does not require that the Court find a constitutional right to gay marriage. Moreover, such a decision will not be very controversial,” Bloch says.

However, some gay rights advocates hope the Supreme Court will be influenced by what they see as a shift in public opinion. In fact, just before Election Day, as described by The Washington Post, gay rights advocates specifically focused on the importance of sending a message to the Supreme Court.

In an e–mail sent to supporters in Maryland, Courage Campaign listed yet another reason for going to the polls to support gay marriage. The subject line read: “Justice Anthony Kennedy is watching you.”

Anna Stolley Persky is a frequent contributor to Washington Lawyer.

Notes
[1] No. 12-307.
[2] No. 12-144.
[3] Baker v. Nelson, 191 N.W. 2d 185 (1971).
[4] 478 U.S. 186 (1986).
[5] 855 N.E. 2d 1 (2006).
[6] 517 U.S. 620 (1996).           
[7] Baker v. Vermont, 744 A.2d 864 (Vt. 1999).
[8] 539 U.S. 558 (2003).
[9] 440 Mass. 309 (2003).
[10] 388 U.S. 1 (1967).