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The important connection between the courts and marriage equality ballot measures
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.
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13 Comments Leave a Comment
1.
davep | October 4, 2012 at 12:53 pm
While it is certainly true that current events and political climates can have an effect on the courts, neither the Prop 8 case nor any of the DOMA cases would "impose same-sex marriage on the country" as stated in the article. Ruling in favor of the plaintiffs in the Prop 8 case would simply restore same sex marriage to California, just as it was before Prop 8 passed, and ruling in favor of the plaintiffs in the DOMA cases would simply give federal recognition to same sex marriages that already exist in states that already allow it. Neither of these are imposing anything on the whole country, they only affect specific states that already have, or already had in the past, civil marriage rights for same sex couples. The courts are certainly aware of this so I'm not sure why the author would choose this wording for the article. It's not accurate and it seems a bit inflammatory.
2.
Mike in Baltimore | October 4, 2012 at 3:55 pm
If Toobin is using the Loving v Virginia case as an example of SCOTUS not being in front of popular opinion, he has a problem.
National polling found that it wasn't until after 1990 (23 years after the case) that a majority of Americans were not against inter-racial marriage. Yes, it may have been 16 states that still had anti-miscegenation laws, but in some of the states that didn't, the number of people against inter-racial marriage could have been a majority – the legislature just hadn't gotten around to legislating against inter-racial marriage and/or the bias against inter-racial marriage was quite a bit lower on the list of 'important' things for the voters.
And remember, if SCOTUS didn't want to get out in front 'too early' (as Toobin suggests), why did SCOTUS take up and issue a ruling on 'Obamacare' this year, and not next? After all, the polling never showed a large majority for it, and in fact, most polls found a large majority against it.
3.
F Young | October 4, 2012 at 4:30 pm
@davep
"…neither the Prop 8 case nor any of the DOMA cases would impose same-sex marriage on the country…"
This is a point that I am unclear about. I know it is pretty complex and this is a lot to ask, but I would appreciate a clarification, if you can.
Given the issues expected to be raised by the Prop 8 and DOMA cases once the cert pleadings are complete, would it not be open to SCOTUS to decide that heightened scrutiny applied to those laws and they don't meet that standard?
If it did, would that not create a binding precedent that would make it virtually impossible to defend any current or future state constitutional amendment, state DOMA or other marriage statute with an opposite-sex requirement, so that they would necessarily fall once each one was legally challenged?
I know such a bold SCOTUS decision would be unlikely right now, but is there a procedural or legal obstacle to this possibility?
4.
specificplan | October 4, 2012 at 5:16 pm
I think that the OP meant that none of the cases before the Supreme Court would immediately impose SSM on the rest of the country. I.E. We won't wake up the day after the decision and be able to get married anywhere. The decision on suspect class or intermediate scrutiny could lead other courts to begin finding that all the other bans against same sex marriage would be invalid, but there might still be years or decades of litigation to get to that point.
5.
davep | October 4, 2012 at 5:44 pm
Yup, I think 'specificplan' has it right. Even if SCOTUS takes up the Prop 8 and/or DOMA cases, that cannot immediately "impose same sex marriage on the country" regardless if they apply strict scrutiny or just rational basis as the test, because none of these cases are actually examining the question of whether same sex couples have a constitutionally protected right to civil marriage. It would still require additional individual cases in individual states and circuits to make further changes in those states and circuits (although yes, winning these cases can help speed up and simplify those new cases).
And what is likely is that if the court takes up any of these cases and rules in our favor, they would phrase their decision the same way all the lower courts have phrased it – that laws which affect same sex couples (or LGBT people in general) don't even pass 'rational basis' review, so they will not weigh in on the question of whether such laws deserve heightened or strict scrutiny. In general, they keep their rulings as narrow as possible and answer only the specific question brought before them in the case. If they can avoid having to answer the question of "do these types of laws merit strict scrutiny?" they will do that.
6.
F Young | October 4, 2012 at 7:08 pm
Thanks for the clarification, specificplan and davep.
7.
karen in kalifornia | October 4, 2012 at 8:22 pm
If SCOTUS was to rule Section 3 of DOMA unconstitutional, that would not " impose same-sex marriage on the country" to quote Tobin. Typical heternormative misunderstanding of what the situation is out there.
8.
Adam Bink | October 4, 2012 at 8:24 pm
Really important piece by Toobin. Thanks for the post Jacob.
9.
Jacob Combs | October 5, 2012 at 6:16 am
I agree that the language there is problematic, but I believe Toobin was referring to a ruling on Prop 8 that would declare a fundamental right to marriage for same-sex couples nationwide, as opposed to a ruling on the DOMA cases.
10.
Nick | October 5, 2012 at 8:25 am
Toobin's legal reasoning is always shoddy!
11.
SHOES THROWER | October 7, 2012 at 10:16 am
There are several such cases already, including an Oklahoma case that finished briefing at the district court level. Some of these cases will be decided, at least at the district court level, before the Supreme Court hears oral arguments on DOMA, Prop. 8, or even possibly Arizona Section O.
12.
SHOES THROWER | October 7, 2012 at 10:24 am
There is precedent for this. the Supreme Court, in Lawrence v. Texas,539 U.S. 558 (2003), refused to decide the cased on equal protection grounds because " some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants" Lawrence, 539 U.S. at 575. Similarly, some might question if same-sex marriage can be prohibited as applied to persons who never had a right to marry someone of the same sex , including persons living in jurisdictions that allow same-sex marriage but for other reasons, such as age and residency and pre-existing marriage, are not able to legally marry someone of the same sex.
13.
SHOES THROWER | October 7, 2012 at 11:26 am
But overrruling DOMA would, at a minimum, call into question state marriage amendments that also ban civil unions.
In my opinion, such amendments, like DOMA, would satisfy rational basis and fail strict scrutiny. I fail to see how they can survive fully intact if DOMA does not, unless different levels of scrutiny somehow apply.
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