In my last post I discussed Michael Klarman’s recently
published book, From the Closet to the
Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford,
2012). I described Klarman’s history of
the gay rights movement and his consideration of what this history may tell us
about the phenomenon of political backlash to court decisions. In this post I turn to the last chapter of From the Closet to the Altar, in which
Klarman offers some predictions about what we might expect with regard to gay
marriage debate, including the possibility of the Supreme Court attempting to
resolve the issue.
Klarman’s one big prediction is hard to argue with: “If any social
change seems inevitable, it is the growing acceptance of gay equality generally
and gay marriage specifically.” This is
a trend driven both by demographics (support for gay rights is strongest among
youth) and by cultural changes. The
trend is also driven by the self-reinforcing nature of gay rights advances. As Klarman observes, “the greatest increases
in support for gay marriage in the last fifteen years have come in the states
that already were the most supportive of gay rights.” Societal acceptance of homosexuality, once it
begins to take hold, has a tendency to gain momentum.
What role is the Supreme Court likely to play in this
story? Klarman’s book went to press
before the Supreme Court agreed to hear the cases involving the federal Defense
of Marriage Act and California’s Proposition 8, the state referendum banning
same sex-marriage that both a federal district court and the Ninth Circuit have
ruled unconstitutional. (The justices
will hear oral arguments next month.)
But Klarman does offer some “informed speculation” on how the Court
might deal with the issue.
On DOMA, he writes: “One can easily imagine a Court composed
of liberal justices who probably sympathize with gay marriage and conservative
justices who believe in states’ rights agreeing to invalidate DOMA on the
ground that the federal government should not be involved in defining
marriage.”
What about a Supreme Court ruling striking down, on
constitutional grounds, state laws limiting marriage to the union of a man and
a woman? Viewed in the long term, this,
according to Klarman, is an easy issue to predict. “Once public opinion has shifted
overwhelmingly in favor and many more states have enacted gay marriage, the
Court will constitutionalize the emerging consensus and suppress resisting
outliers. That is simply how
constitutional law works in the United States.”
But even if we assume that the Court will be responsive to a
durable cultural and political transformation, critical questions about the
timing and scope of this response remain.
This is where the prediction game becomes far trickier.
On the Supreme Court today, there are no sure-fire votes in
favor of a sweeping ruling finding a constitutional right to gay marriage. The liberal justices who are most likely to
sympathize with the cause of marriage equality will surely be concerned about
the risk of having the Court push too far ahead of society. (This was the reason, for example, the Court delayed
striking down prohibitions on interracial marriages for so long—Loving v. Virginia (1967) came thirteen
years after Brown.) Klarman notes that Justice Ginsburg has criticized
Roe v. Wade for doing just this. But with public opinion moving so clearly in
one direction, and with a steady stream of new legislative and judicial
victories for gay marriage, it is simply hard to predict when the liberal
justices will feel the conditions are right for the Court to intervene.
Then we have the enigma of Justice Kennedy. Assuming the liberal wing of the Court lines
up in favor of a broad pro-gay marriage ruling, then, in all likelihood, Kennedy
(yet again) will become the swing vote. What
might he do in such a situation? Kennedy
“has often taken dominant national norms, converted them into constitutional
mandates, and then suppressed outlier state practices,” Klarman writes. His major death penalty decisions and Lawrence v. Texas (2003) fit in this
category. This approach would indicate
that a ruling locating a right to gay marriage in the Constitution is still
some ways off. Although opinion polls
recently crossed the fifty-percent threshold in favor of gay marriage, the
dominant legal rule in the nation still prohibits gay marriage. Yet Kennedy has also distinguished himself as
particularly willing to lead the Court when it comes to issues of gay
rights. He was, after all, the author of
the pro-gay rights decisions in Romer v.
Evans (1996) and Lawrence.
Although at this point the smart money surely is still on
the Court refusing to recognize gay marriage as constitutionally required,
Klarman offers a particular thought-provoking suggestion about the role that
history—and a justice’s sense of historical legacy—might play in pressing the
Court to take the step that in the long run seems so inevitable. “What justice,” he asks, “would not be
tempted to author the opinion that within a few short years likely would become
know as the Brown v. Board of the gay
rights movement? Justice Kennedy would have
the option of writing that opinion if he wished to do so.”
