Eight years ago Sunday, the Supreme Court handed down a significant victory for gay equality when it declared anti-sodomy laws unconstitutional in Lawrence v. Texas. In response, Justice Antonin Scalia bitterly dissented, predicting that the court’s opinion would inexorably lead the judiciary to permit marriages for gays and lesbians.
It took the Massachusetts Supreme Judicial Court less than five months to vindicate Scalia’s prediction when it cited Lawrence in finding that the state’s own constitution protects same-sex marriage. The conservative justice has not, however, had an opportunity to directly consider the merits of same-sex marriage.
The Supreme Court under Chief Justice John Roberts is scheduled to wrap up its term on Monday, having issued controversial decisions protecting the free speech rights of protesters near a military funeral and refusing to certify a class-action lawsuit against Wal-Mart alleging gender discrimination. But a lawsuit asserting a constitutional right to gay marriage has yet to arrive at the Supreme Court. Why not?
The answer, it turns out, is that the lawyers most likely to file such a claim have a misguided understanding of the Supreme Court’s role in American history. They believe the court interprets the Constitution in a manner that merely reflects the consensus values of society and that filing a same-sex marriage lawsuit before the country has embraced the cause is a fool’s errand. That understanding, however, hinges on a distorted view of history. The Supreme Court has not always waited for the values of society to change; it has sometimes shaped those values. In fact, the current court may be prepared to recognize a right to same-sex marriage, even though the issue remains hotly contested. By deferring a federal lawsuit in the hope that public opinion will improve, gay rights advocates could find that a promising window has closed.
In the wake of the Lawrence ruling, the nation’s mainstream gay rights advocacy organizations made a collective decision to forgo a federal lawsuit. Instead, they have focused on strategically chosen state supreme courts. Matthew Coles, director of the ACLU’s Lesbian & Gay Rights Project, wrote in 2004 that “the best way to win the marriage for same-sex couples is to win in as many states as we can before we head to the Supreme Court.”
These advocates were in no hurry to get a case before the Supreme Court because public opinion surveys, while finding increasing approval of same-sex marriage, revealed nothing approaching a consensus in favor of the idea. Polling showed, however, that younger people support gay marriage by wide margins, so these advocates figured that biding their time before petitioning the court was prudent.
This united front held until 2009, when David Boies and Theodore Olson — erstwhile antagonists from the Bush v. Gore litigation — filed a same-sex marriage lawsuit in a California federal district court. The mainstream gay rights community was apoplectic. Various leaders derided the lawsuit as “reckless,” “risky” and, above all, “premature.” The Human Rights Campaign and Lambda Legal, along with other organizations supportive of same-sex marriage, even released an unusual statement condemning the lawsuit’s timing: “The history is pretty clear: the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states.”