California’s ban on gay marriage is likely to fall soon, due to a pair of developments in the past week. What remains uncertain is whether same-sex marriage will become lawful in just a score of “blue states,” or the norm throughout the nation.
Public opinion on marriage for gay and lesbian couples has shifted with almost unprecedented speed for a major issue. Even without a court ruling, that shift could doom restrictive marriage laws in liberal states such as California. It is also likely to have an effect on the court itself, in particular with Justice Anthony M. Kennedy and possibly Chief Justice John G. Roberts Jr.
Throughout his long career, Kennedy has been willing to make major changes in the law on issues including the death penalty, gun rights and gay rights. Kennedy has been a strong, steady proponent of constitutional principles such as free speech, individual liberty and limits on government power. But before signing on to major changes such as abolishing the death penalty for young murderers, for example he has wanted to feel comfortable that the change was in line with public opinion and the trend in the law.
“Among all the justices, he is most concerned about public opinion,” New York University law professor Barry Friedman said of Kennedy. “The more there is a groundswell of support for gay marriage, the more it is likely he will vote to support it.”
Kennedy, along with others on the court, probably would also resist going too fast. The current justices, both liberals and conservatives, say the court of the early 1970s made a mistake by striking down all state laws on abortion and capital punishment. Both decisions appeared to trigger a backlash, and the death penalty was soon restored to law.
Better to move in line with or just slightly ahead of shifting opinion, they believe.
In California, public opinion clearly has shifted since Proposition Eight passed in 2008 and banned same-sex marriage. A Field Poll released this week showed that California voters, by a nearly 2-1 margin, now approve of allowing same-sex couples to marry, a finding in line with states that legalized gay marriage in November’s election.
With that shift, lawyers supporting same-sex marriage have offered the justices a range of options they could use to rule in favor of gay rights. The Obama administration’s legal brief advocates a step-by-step approach.
Commenting Friday on the administration’s filing in the case, President Barack Obama told reporters that, “I do think that we’re seeing, on a state-by-state basis, progress being made more and more states recognizing same-sex couples and giving them the opportunity to marry and maintain all the benefits of marriage that heterosexual couples do.” But, he added, the administration wanted to “answer the specific question” before the court whether “the California law is unconstitutional.”
In providing that answer, Solicitor Gen. Donald Verrilli Jr. drew on arguments he had filed with the court just a few days earlier saying the justices should strike down part of the Defense of Marriage Act, which denies federal benefits to legally married gay couples in states such as Massachusetts. He advised the court to say that discrimination based on a person’s sexual orientation is highly suspect, akin to gender bias. It can be justified only if a state can show a strong need to treat gays and lesbians differently than other citizens, the administration argued.
Verrilli’s brief filed Thursday applied that same approach in the Proposition 8 case. It argues that because California and seven other states Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island already have given gay couples full legal rights, there is no justification for denying them a right to marry.
This is what some lawyers have dubbed the “eight-state solution.”
Already, nine other states and the District of Columbia authorize same-sex marriage. If the Supreme Court were to adopt the administration’s view, it could raise the total to 17, mostly in the Northeast and on the West Coast.
While this would be a significant ruling, it would not require Justice Kennedy and his colleagues to mandate gay marriage in the “red” states where majority opinion continues to oppose it.
The defenders of Proposition Eight also cite the change in public opinion, but argue it is a reason for the court to stand aside. Because there is a great national debate over gay marriage, and some states are changing their laws, the court has no need to intervene, they said.
Andy Pugno, general counsel for the Proposition Eight proponents, said it was “very disappointing” that the Obama administration had urged the court to strike down the voter initiative. “The president has impugned the motives of millions of Californians,” he said, “and disregarded the rights of each state to decide for itself whether to redefine marriage.”
If the court were to adopt a version of the “eight-state solution,” it would allow most states to decide for themselves, as Pugno advocates, at least for now. But it is also true that if the justices decided discrimination against gays violates the Constitution’s guarantee of equal protection of the laws, that same argument eventually could be used to invalidate the remaining state laws against same-sex marriage. The justices might be particularly willing to do so if the majority of states already had acted.
In 1967, the Supreme Court ruled that laws barring mixed-race couples from marriage violated the Constitution. By then, only 16 states still had such laws on their books.
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