Supreme Court litigation is a bit like bread-baking. If the dough goes in the oven too soon, before it’s had enough time to rise, the end product is unpalatable. Yet at a certain point, the oven beckons. Baking is key to the process.
This is the conundrum presented by the Supreme Court’s decision to tackle the subject of same-sex marriage. For those who believe in marriage equality, the court’s move is both exhilarating and scary.
To understand why, remember that the court agreed to hear two very different cases. One involves the constitutionality of the Defense of Marriage Act (DOMA) and the question of whether the federal government, in states that recognize same-sex marriage, can refuse to provide some married couples the federal benefits available to others.
The court was widely expected to accept the DOMA case because the law was declared unconstitutional in the lower courts. It is possible to imagine a majority — the four liberal justices and Justice Anthony M. Kennedy, most likely — agreeing. After all, the DOMA argument has overtones of federalism that ought to appeal to conservatives: the right of states to have their judgments about marriage respected by the federal government.
Moreover, the DOMA issue does not call on the court to wade into the far more controversial matter of whether the Constitution affirmatively requires states to grant same-sex couples an equal right to marry.
How the court decides the DOMA case will be illuminating for how the justices might deal with that question. For example, how strict a test will the justices apply to laws that discriminate on the basis of sexual orientation? But striking down DOMA would be a much less consequential step — albeit an exhilarating one — than extending to same-sex couples a constitutional right to marry.
This issue is implicated by the second case, involving California’s Proposition 8 ban on same-sex marriage. The court doesn’t have to reach the constitutional question in this case, and my guess is it won’t. There are various offramps for the justices to take.
For example, the Supreme Court raised the question of whether those arguing to reinstate Prop 8 had standing to do so. Even if it doesn’t avail itself of a procedural out, the court could avoid declaring — or rejecting — a broad right to marriage equality because of the unusual facts of California, which recognized same-sex marriage before voters rejected it. An appeals court relied on that about-face in declaring Prop 8 unconstitutional.
Still, the prospect that the justices could decide whether there is a constitutional right to marry is unsettling, even scary, because it’s far easier to count five votes for “no” than for “yes.”
Much like the step-by-step litigation that produced Supreme Court victories against racial discrimination, the court may need time — and new members — to get there. On the then-divisive issue of interracial marriage, the Supreme Court deliberately dawdled until more states had lifted their bans. Waiting is hard. Losing is worse.
As justification for such anxieties, look no further than President Obama. This year, he finally backed same-sex marriage. But he stopped short of declaring that the Constitution protects the right of same-sex couples to marry, as it does interracial couples.
Worrying that this case is premature is very different from saying that court protection is unnecessary. Some observers have looked at rapidly changing attitudes and suggested that court intervention is unwarranted and unwise.
This is an updated — and equally wrongheaded — version of the contention that the court’s declaration of a constitutional right to abortion preempted formation of a national consensus on the divisive subject. If only the court had stayed out, this argument goes, states would have moved on abortion rights.
Nonsense. The movement toward same-sex marriage — three states just approved marriage-equality measures, the first time such efforts had succeeded at the ballot box — is gratifying and instructive. Whether the Supreme Court follows election returns, the justices are exquisitely aware of the public mood.
Yet leaving the issue solely to public whim won’t work. Mississippi will never allow same-sex marriage or, if it could choose, abortion. Its citizens deserve the same rights as those of Massachusetts.
This is the fundamental meaning of a national Constitution and the role of federal courts. Constitutional protection for marriage equality may not be immediate, but it is, ultimately, both essential and inevitable.