Better late than never on marriage

By Michael J. Klarman

Monday, Sept. 29, 2014 | 2:02 a.m.

During the past year, lower federal court judges have removed most of the suspense from the questions of whether and when the Supreme Court might rule marriage equality to be a federal constitutional right. In case after case, in red states and blue, judges have ruled that same-sex marriage bans are unconstitutional. This makes it likely the Supreme Court will grant review in such a case this year, and even more likely, assuming it does, that it will rule the Constitution requires states to extend marriage equality to gay couples.

Just one year ago, I wouldn’t have been nearly so confident in making such predictions. In June 2013, the court by a vote of 5 to 4 invalidated the federal Defense of Marriage Act, under which the federal government declined to recognize even those marriages between gay couples that were valid under state law.

Justice Anthony Kennedy’s majority opinion in United States v. Windsor was a masterpiece of intentional ambiguity, providing roughly equal amounts of support to two different interpretations. On one hand, Kennedy’s opinion seemed to be grounded in concerns about the limited power of the federal government over marriage, a ruling that would have had no implications for state bans on same-sex marriage.

On the other hand, language in Kennedy’s opinion regarding the equal dignity and respect to which gay couples were entitled and the important interests of their children suggested state prohibitions on gay marriage were vulnerable to constitutional challenge. One might reasonably have predicted after Windsor that lower federal court judges, who are no less politically polarized than the rest of the nation, would have divided roughly down the middle on how to interpret Windsor.

But that is not what has happened. In the year or so since Windsor, nearly two dozen federal courts have ruled on the constitutionality of state bans on same-sex marriage. With only one exception (a district court in Louisiana), every court to consider the issue has ruled the Constitution requires marriage equality.

This is an extraordinary record of near-unanimity that transcends geographic region, age, sex, race and partisan affiliation.

When Windsor came down, most commentators assumed the five justices in the majority would eventually be willing to invalidate state bans on same-sex marriage but that they preferred not to do so until public opinion had evolved further in support of marriage equality.

In a case decided the same day as Windsor, the court ducked resolving the constitutionality of California’s ban on gay marriage, ruling instead the official sponsors of Proposition 8 lacked standing to defend its constitutionality on appeal.

But the striking number and near-unanimity of the recent lower court rulings can only help convince the justices in the Windsor majority that the country is increasingly prepared to accept gay marriage with little political backlash.

What should we make of such a ruling when it comes? Although the majority will undoubtedly use the occasion to celebrate the court’s historic role as protector of minority rights, such a decision will actually confirm the very limited sense in which the court performs that function. In fact, the entire course of American constitutional history reveals the court defends minority rights only after a majority or near-majority of the country has come to deem those rights worthy of protection.

The court did not invalidate state-mandated racial segregation in education until 1954, by which time a narrow majority of the country agreed with the decision. The justices did not lift a finger in support of gender equality until 1971, after the powerful emergence of so-called second-wave feminism.

During the first and second “Red scares,” the court put its imprimatur on the persecution of political radicals, and during World War II, it upheld the internment of Japanese-Americans. Not until 1996 did the court first defend the constitutional rights of gays and lesbians.

In short, the justices are too much a product of their culture and historical moment to defend in any robust way the rights of unpopular minorities. To many Americans, schooled in the romantic myth of the court as heroic defender of minority rights, this lesson is deeply disturbing.

Who wouldn’t want a court that could have intervened to protect slaves rather than slaveholders to challenge the Southern system of Jim Crow at its zenith rather than during its demise, strike down Japanese-American internment and protect women’s equality and gay equality before it became fashionable to do so?

But neither our high court nor that of any other nation is equipped to perform such a function, and believing otherwise can be a dangerous delusion. The more realistic our assessment of the court’s capacity to protect minorities, the better we will appreciate the need for popular vigilance over politics.

Still, it is better for the court to protect minority rights late than never. Gay couples in states such as Mississippi and Alabama, where public support for gay rights remains relatively low, will be able to marry a decade or so before they otherwise could have plausibly done so because of a court ruling in favor of marriage equality.

Moreover, one might derive some solace from knowing that had the court tried to protect marriage equality much earlier, it probably would have generated a political backlash that would have hindered the cause. After the Hawaii Supreme Court in 1993 hinted at a state constitutional right to gay marriage, 35 states and Congress enacted defense-of-marriage laws.

And within five years of the Massachusetts Supreme Court’s landmark 2003 decision squarely ruling in favor of gay marriage, nearly 30 states passed constitutional amendments barring it.

Had the U.S. Supreme Court ruled in favor of marriage equality as little as 10 or 15 years ago, the decision probably would have prompted the enactment of a federal constitutional amendment mandating marriage discrimination, which would have substantially delayed the ultimate triumph of marriage equality.

Thus, not only would it be unrealistic to have expected the court to reach the just outcome on marriage equality well in advance of public opinion, but for the justices to have done so might actually have delayed that result.

As Abraham Lincoln frequently observed, in the United States, public opinion is everything. Even the Supreme Court cannot act independently of its constraints.

Michael J. Klarman is a professor at Harvard Law School. He wrote this for the Los Angeles Times.