The Supreme Court seems determined to bring marriage equality to the United States as slowly as possible. If they move too slowly, however, the forces of discrimination may be smiling in a few years.
Although the Court threw up some pretty clear signs last week that there are five justices who support marriage equality, that could change if one of those justices leaves the bench. And if they do so before they and their colleagues get around to actually saying that equality is required under the Constitution, it will be much easier for the newly constituted Court to halt — or even reverse — nearly 20 years of progress on gay rights.
To be sure, it’s difficult to exaggerate the importance of a two-sentence order the Supreme Court issued Friday allowing same-sex marriages to begin in Idaho. A few days earlier, a federal appeals court declared Idaho’s ban on same-sex marriage unconstitutional, and the state had asked the justices to put that decision on hold pending further review by the Supreme Court. When the justices told Idaho “no,” they delivered the second major blow to marriage discrimination in under a week. On Monday, the Court denied review of several lower court decisions siding with marriage equality — a denial that effectively made equality a constitutional requirement in 14 states.
Though opponents of equality will continue to file briefs and make increasingly more and more creative legal arguments in an attempt to ward of full equality in all fifty states, these efforts look increasingly like hospice care for discrimination. With its two gay rights actions last week, the Supreme Court communicated that it would no longer stand in the way of marriage equality. If a lower court sides with gay couples, as every single federal appeals court to consider the question has done since the justices struck down the anti-gay Defense of Marriage Act in 2013, the nation’s highest Court will not prevent that decision from going into effect swiftly.
Yet, while it now seems clear that a majority of the Court is ready for marriage equality, this majority appears equally committed to advancing gay rights in as many incremental steps as possible. The last time gay rights was before the Court, when the justices considered DOMA as well as a California ballot initiative stripping gay couples in that state of equal marriage rights, Justice Sonia Sotomayor pondered whether it would be possible to limit a decision requiring states to allow same-sex couples to marry to just California (something the Court ultimately did find a way to accomplish, although with Sotomayor in dissent). Justice Anthony Kennedy, a conservative who generally votes with the Court’s more liberal members on gay rights, worried about the “uncharted waters” facing the Court if it extended marriage equality to all fifty states. More recently, Justice Ruth Bader Ginsburg told an audience at the University of Minnesota Law School that there was “no need for us to rush” to decide the question of marriage equality until after an appeals court rules in favor of discrimination.
This desire to move slowly when confronted with a contentious issue has its virtues. As I explain in a forthcoming book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, the Supreme Court has a long history of handing down sweeping decisions that we now recognize as moral abominations with little connection to the law or the Constitution. Several of the same justices, for example, who claimed that employers have a broad constitutional right to exploit their workers also voted to uphold a Virginia law permitting the state to sterilize people against their will. In the wake of that later decision, over 62,000 people in the United States, most of them women, were sterilized in service of a nationwide eugenics movement.
Nor have modern day justices shown much inclination towards caution in several areas outside of gay rights. Where was the Court’s instincts for judicial restraint, for example, when it tore out much of the foundations of America’s campaign finance laws in Citizens United v. FEC? Or when it upset the longstanding balance between protecting religious liberty and maintaining the rule of law that existed prior to the Court’s decision in Burwell v. Hobby Lobby? As Justice Ginsburg warned in her Hobby Lobby dissent, the Court “has ventured into a minefield” in its decision tearing down longstanding limits on when religious objectors can refuse to obey the law.
Unlike the early twentieth century decisions enabling employers to exploit their workers, however, there is a strong textual hook in the Constitution supporting the right to marriage equality. The Constitution forbids the states from denying “to any person within its jurisdiction the equal protection of the laws.” Similarly, unlike the Court’s decisions in Citizens United and Hobby Lobby, the case for gay rights is firmly rooted in longstanding Supreme Court precedent. For decades, the Court has recognized that groups which have historically been subject to prejudice that “frequently bears no relation to ability to perform or contribute to society” should receive heightened constitutional protection against discrimination.
There is little doubt that LGBT people meet this standard. Indeed, at oral argument in the California marriage equality case, the attorney defending the state’s marriage discrimination initiative conceded that he “cannot” think of any example outside of marriage where discrimination against gay couples would be “rational.”
So it is a bit unusual that the justices have selected marriage equality — an area where the law is fairly clear and where many states have experimented with equality without seeing the dreadful consequences predicted by defenders of discrimination — as an area for extreme caution when they have proved so willing to wander into a “minefield” elsewhere.
Whatever the reason for this disparity, however — and it may simply stem from the fact that four of the five justices who tend to support gay rights are the same four who typically end up in dissent in cases like Hobby Lobby or Citizens United — the Court’s slow walk towards equality could have dire consequences for gay couples if it moves too slowly. Justice Ginsburg is 81. Justice Kennedy is 78. Justice Stephen Breyer, another consistent vote for gay rights, is 76.
If just one of them retires or dies when a conservative president is in the White House — or even if one of them leaves the Court at a time when the Senate is unwilling to confirm a left-of-center justice — then the Court is likely to lose its majority in support of gay rights. And if the Court has not handed down a definitive decision cementing marriage equality throughout the nation, it will be much easier for the Court’s new majority to justify bending the moral arc of the universe away from justice. The Court’s decision in United States v. Windsor, which struck down DOMA, was only a 5-4 decision. If the question of marriage equality reaches a more conservative Court several years into the future, Windsor could be overruled.