A Harvard constitutional law professor writing in the New York Times predicts the U.S. Supreme Court will strike down DOMA, the federal Defense of Marriage Act, if the court takes the case this term. Michael J. Klarman, who is also a legal historian, offers several scenarios that might lead even conservative justices on the court to declare — as several federal courts have already — that DOMA is unconstitutional.
“Conservative justices who value federalism and liberal justices who sympathize with gay marriage will probably combine to invalidate the act,” Klarman writes, in his Times op-ed, “Gay Rights May Get Its Brown v. Board of Education.”
On one hand, some judges — notably Justice Antonin Scalia — think the constitutional case for same-sex marriage obviously fails because nobody in 1868, when the 14th Amendment was ratified, dreamed that its equal protection clause applied to gay marriage. The right to marriage, which is deeply rooted in American history, was traditionally limited to opposite-sex couples. And there is no Supreme Court precedent subjecting laws that classify based on sexual orientation to the rigorous judicial scrutiny that has been applied to classifications based on race or sex.
On the other hand, some judges have ruled that classifications based on sexual orientation should receive such scrutiny, as gay men and lesbians have long been victims of discrimination and still face social and political obstacles. They have also argued that marriage is a fundamental right that should not be narrowly circumscribed without good reason, and have found wanting the argument that marriage bears an inherent link to procreation.
Klarman, who is believed to argue “that civil rights protections arise out of social mores from which the court takes its cue,” posits that “politics,” and not precedent,may be the deciding factor:
Today’s justices divide five to four on virtually every important contemporary constitutional issue, including abortion, affirmative action, campaign finance, capital punishment and gun control. The court consists of two relatively stable four-person blocs of liberals and conservatives, with Anthony M. Kennedy hovering between them, usually casting the deciding vote. He has sided with the liberals in some cases involving abortion, the death penalty, and other civil liberties issues, but with the conservatives in most other cases. Gay marriage is likely to turn on Justice Kennedy’s vote. What might it be?
Justice Kennedy could, of course, follow a compromise path and rule that the Constitution mandates at least civil unions for same-sex couples. With two-thirds of Americans supporting civil unions, such a ruling would generate little political controversy.
But were Justice Kennedy to rule on gay marriage itself, his decision would most likely depend on how he balanced two competing tendencies. As in decisions invalidating state sodomy laws and barring the death penalty for minors and the mentally disabled, Justice Kennedy’s rulings often bolster dominant national norms and suppress dissident state practices. This approach would counsel restraint at a time when only six states and the District of Columbia permit gay marriage. (On Election Day, same-sex marriage will be on the ballot in Maine, Maryland and Washington, and a constitutional amendment to ban it will be on the ballot in Minnesota.)
However, Justice Kennedy also explicitly embraces the idea of the Constitution as a living document whose meaning reflects evolving social mores. Partly on this basis, he wrote both of the court’s pro-gay-rights decisions: the 1996 opinion in Romer v. Evans, which invalidated a provision in the Colorado Constitution barring state or local governments from enacting laws forbidding discrimination based on sexual orientation, and the 2003 opinion in Lawrence v. Texas, which ruled that sodomy laws violated the due process clause of the 14th Amendment. It’s also notable that Justice Kennedy treats international norms as relevant to American constitutional interpretation. Gay marriage has recently been legalized in South Africa, Canada and many European nations, and is being actively debated in others.
Justice Kennedy’s opinions often suggest that he wants to be on the right side of history, which matters greatly here because the future of gay marriage in America is so clear. Support has increased from less than 25 percent in 1990 to roughly 35 percent in 2004 to over 50 percent today. At the current rate, a substantial majority of Americans will support gay marriage within the next dozen years.
Klarman is the author of From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage.
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