The quasi-triumphant coverage of this week’s Supreme Court oral arguments in cases related to marriage equality is making me uncomfortable. Not because I don’t want the high court to rule in a way that upholds the dignity and equal protection of same-sex couples who are or want to be married, but because I don’t think lesbian, gay, bisexual and transgender (LGBT) Americans fully appreciate just how tenuous things are on the court right now. The undeniable forward momentum propelling today’s hopeful enthusiasm could be the very thing that keeps the Supreme Court from going big.
The arguments in Hollingsworth v. Perry (a.k.a. the Prop 8 case) and United States v. Windsor (a.k.a. the DOMA case) mark the high point of the startling transformation in public opinion in a relatively short period of time. When President Obama took office in 2009, same-sex marriage was legal only in Massachusetts (where it was approved in 2004) and Connecticut (2008). Today, marriage equality reigns in nine states and the District of Columbia. Three of them (Maine, Maryland and Washington state) said, “I do,” last November.
This is happening in tandem with an incredible swing in public opinion. In 2003, 55 percent of the American people were against same-sex marriage in the Washington Post-ABC News poll taken at the time. Last week, a new Post-ABC News poll revealed 58 percent support for marriage equality. That’s a complete flip in public opinion and marks the highest level of support ever.
All of this is fantastic. And it could lead the Supreme Court to decide to take a back seat to a political process moving in the right direction.
Justice Ruth Bader Ginsburg is firmly in the liberal wing of the court. Justice Anthony Kennedy’s majority opinion in Lawrence v. Texas made him a hero in the LGBT community. He’s also considered the swing vote in the Prop 8 and DOMA cases. Yet, their recent comments on the role of the court on such monumental social issues should give pause to folks hoping for a sweeping ruling.
Adam Liptak of the New York Times laid out Ginsburg’s discomfort in a terrific story Sunday about the shadow of Roe v. Wade over the court this week. For Ginsburg, the Court’s ruling that made abortion legal “moved too far too fast” and created a political backlash against the court that endures to this day.
“The legislatures all over the United States were moving on this question,” Justice Ginsburg said at Princeton in 2008. “The law was in a state of flux.”
“The Supreme Court’s decision was a perfect rallying point for people who disagreed with the notion that it should be a woman’s choice,” she added. “They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges.”
“A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said earlier this month in Sacramento. “And I think it’s of tremendous importance for our political system to show the rest of the world — and we have to show ourselves first — that democracy works because we can reach agreement on a principle basis.”
“I would expect someone like the chief justice to ask at oral argument why the court should move to intervene in this area now that the democratic process has seemingly started to move so quickly,” one attorney who has argued before the Supreme Court told me last week. “What that question will ignore is the fact that the democratic process in this area is state by state, and a majority of states have state constitutional provisions banning marriage of same-sex couples. So unless the court acts it will be decades before there is marriage equality in much of the country.” That’s because there are legislative or constitutional bans on same-sex marriage in 31 states.
This lawyer and the others I spoke with understood and shared my concern about the impact that the public momentum would have on the court. But they also think the shift in public opinion and the recent action in the states might actually assuage some of the court’s trepidation of going out on a limb again on a social issue.
“I think the progress we’ve been making actually makes it easier for the court to strike down DOMA and Prop 8 without feeling it is getting too far out ahead of public opinion,” said Lanae Erickson Hatalsky, director of social policy and politics at Third Way. “The justices certainly read the newspaper, and they are cognizant of the huge changes in public opinion over the last few years for sure.”
Evan Wolfson of Freedom to Marry sounded the most hopeful. “The freedom to marry momentum we have been building should give justices thinking about their legacy and that of the court great confidence that they can rule in favor of the freedom to marry and know that not only will history vindicate them, but that they will be true to where the American people already are,” he said. “We are conveying to the court the clear message that America — with 58 percent support in the latest poll — is ready for the freedom to marry. And that very same poll — by 64 percent — said that Americans understand that the freedom to marry should be addressed nationally under our Constitution, with the Supreme Court ruling….”
I’ll admit to also being cautiously optimistic about what how the Supreme Court might rule in the DOMA and Prop 8 cases. According to charts from Third Way and the Times, the justices could take any number of routes. They could hand down sweeping rulings that make marriage for same-sex couples a constitutional right, or they could punt. But the justices need to know that rulings which advance equality for same-sex couples would put the court not ahead of the American people but rather with the American people.
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