October 4, 2012
By Jacob Combs
Jeffrey Toobin had an intriguing piece on the New Yorker website this Tuesday wondering whether ballot wins for marriage equality in November might translate into favorable Supreme Court rulings on DOMA or even the Prop 8 case. In the most by-the-book sense, Toobin points out, the results of the four ballot measures in Maine, Maryland, Minnesota and Washington will have no direct impact on any of the legal arguments being made in the courts about marriage equality: “In theory,” he writes, “the work of the courts and the will of the voters operate on entirely separate tracks.” But Toobin goes on to explain that in practice, these kinds of developments matter very much:
The real world, however, works very differently. The courts, especially the Justices of the Supreme Court, are acutely aware of how their rulings reflect (or conflict with) public opinion. Even Justices who are sympathetic to legal claims worry when their positions put them too far out of step with the voters. Ruth Bader Ginsburg, for example, who made her name as the leading feminist lawyer of her generation, has expressed such views. Though Ginsburg herself always believed that women have a legal right to an abortion, she has often expressed unease with the Court’s approach in the 1973 landmark of Roe v. Wade.
Toobin points to the landmark Supreme Court decision in Loving v. Virginia, the 1967 ruling that struck down anti-miscegenation laws in the United States that prohibited interracial couples from marrying. Loving is one of the most important judicial decisions in the 20th century (and an example that is frequently cited by marriage equality advocates as a precedent for a broad ruling on a fundamental right to marry for gay and lesbian couples), but it wasn’t an example of the Court leading on an issue of basic fairness. On the contrary, by the time Loving was decided (unanimously, it is worth adding), only 16 states still had anti-miscegination laws on the books.
And that, argues Toobin, is why November’s marriage equality measures are so important:
The votes will give us the best picture of where the country is on same-sex marriage. The snapshot will be imprecise, of course. All four states are generally Democratic in their orientation, so they are not a true cross-section of country. But given the Court’s history, even the more liberal justices may be reluctant to impose same-sex marriage on the country if the people—the voters—repeatedly say that they do not want it. The polls predict close races in all four states. The results will echo well beyond their borders.
Although the legal reasonings behind Supreme Court rulings can often seem complex and technical, they certainly do not take place in a vacuum. Toobin is right that the four marriage equality measures this year could have a major impact on the Court’s consideration of DOMA and the Prop 8 case. A win for equal marriage rights in several states would be evidence of shifting public opinion, while losses for marriage equality could give the Court political cover to say the country isn’t ready for Loving-esque ruling yet. This is why it’s so significant to pursue equality through multiple avenues at once: the courts look at legal issues from a holistic, societal perspective, and while it may be frustrating to push for marriage equality through legislative means, it shifts the landscape and lays the foundation for future wins in the judiciary.