I fear that Scalia had far more foresight than we could have imagined.
I have previously written on the Supreme Court’s treatment of homosexual “marriage” in regard to a couple of important issues. The first was the stealth lip-service that Justice Kennedy gave to “States’ Rights” in the recent Windsor decision striking down DOMA. The second was merely an emphasis on the fact that Kennedy’s opinions have displayed a clear path of judicial activism. After hearing oral arguments in the pending case for homosexual “marriage,” my opinions have changed little.
In my first article, I noted how the Windsor opinion argued that States which allow homosexuals to marry thereby confer to those marriages “equal dignity” with which the federal Congress is not allowed to “interfere.” The stealthy part was that, while speaking of the states’ “sovereign power” to make this decision, this so-called “equal dignity” is itself a federal constitutional “right” derived from the Fourteenth Amendment. So the opinion was actually affirming federal power in one area—equality—and supporting states as long as it upheld that power. The decision left unanswered the question of whether this same federal power can be used to trump states where they disagreed with “equality.” But I showed plenty of precedent—stemming from Kennedy’s pen in the past—that showed the future to be in serious jeopardy for conservatives.
The second article confirmed this with special focus on Scalia’s scathing dissent: “I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”
What is established so far is that the Court will constitutionally validate homosexual marriages where already established, under the protection of equality. The current case—Obergefell v. Hodges—is asking the court to go ahead, under the same constitutional justification, to force states that don’t currently recognize such “marriages” to do so. What I hear in the questioning during oral arguments is a clear confirmation of Scalia’s prediction: key Justices are inquiring whether or not enough time has passed and cultural values have shifted enough that they can get away with opining in favor of coercing states to allow homosexual “marriages.” Here are some excerpts.
The Justices know they are up against millennia of cultural, historical, and religious precedent. They know it is also currently undemocratic since a majority of the public—obviously so in states that have laws against homosexuals marrying—opposes overturning this precedent. This issue was raised very early in oral argumentation by Kennedy himself:
JUSTICE KENNEDY: One — one of the problems is when you think about these cases you think about words or cases, and — and the word that keeps coming back to me in this case is — is millennia, plus time. First of all, there has not been really time, so the Respondents say, for the Federal system to engage in this debate, the separate States. But on a larger scale, it’s been — it was about — about the same time between Brown and Loving as between Lawrence and this case. It’s about 10 years.
And so there’s time for the scholars and the commentators and — and the bar and the public to — to engage in it. But still, 10 years is — I don’t even now how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it — it’s very difficult for the Court to say, oh, well, we — we know better.
The questioning got a bit sidetracked, but the liberals’ answer was that there is actually more precedent that 10 years, and more importantly that public opinion on several marriage and sex issues has been far behind constitutional liberties. In these cases, it only took the Court recognizing this to remedy obvious injustices, and most of society soon caught up.
At this point, the argument becomes 1) whether homosexual marriage is just one more extension of this constitutional liberty, and 2) has there indeed been enough time passed to make a decision that bucks public opinion?
In regard to that second question, that even though Kennedy’s questioning emphasized “millennia” of history opposed to homosexual marriage, he did tip his hand a bit. He referred to a similar amount of time that had previously passed between two cases, “Brown and Loving,” as has now passed between Lawrence and today. Well, Brown desegregated schools, and Loving struck down state laws against interracial marriage. Lawrence struck down state laws against sodomy (in effect, in part, desegregating homosexuality from open society), and now Obergefell is seeking to strike down all state laws against sodomites marrying. It is clear that in Kennedy’s questioning there is a parallel between the two. This, in itself, cannot bode well.
But even the liberal Justices start with lines of questioning in regard to the millennia:
JUSTICE BREYER: And to me, it takes the form, the opposite view has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require States that don’t want to do it to change what you’ve heard is change what marriage is to include gay people. Why cannot those States at least wait and see whether in fact doing so in the other States is or is not harmful 16 to marriage?
Now, that same question has been put in many, many ways in the briefs on our subject. You’ve received it in three or four different ways. I would like to know, so I can hear and understand it, just what your response is.
The pro-homosexual marriages lawyer responded, citing the fact that Justices did the same thing in regard to interracial marriage which was by far more greatly opposed among the public.
MS. BONAUTO: Okay. And I apologize if I haven’t.
In our system, you know, with the Fourteenth Amendment, which again is sets forth principles that we all are governed by and govern our lives, and you look at examples like coverture. Okay? Even if it was not universal, it was still something that was wide — widespread in this nation for a very, very long time, and that change in marriage was deeply unsettling to people.
Likewise, even if race was not used as a basis for discriminating in every single State as a matter of law by criminal law and constitutional law, it was incredibly pervasive. And again, changing that, as Virginia resisted in the Loving case, resisted and said please, wait and see, 80 percent of the American public was with Virginia on that. But again, it was the question of the individual liberty of the person to do something that was considered a profound change in its time.
So here the key language is “wait and see”? Even the liberal Breyer was asking this and demanding an answer. Isn’t it wiser to wait and see the effects in states which have already allowed it, and in which it is now protected—to use these microcosms as test-cases?
The liberal answer to this is that the Fourteenth Amendment gives the protection already, and thus the Justices shouldn’t wait, and secondly, that we already have powerful precedent in altering legal definitions of marriage in ways that were far more powerfully opposed by the public, and yet the Courts did not balk at applying equal protections anyway.
A second counsel for the homosexuals affirmed this with emphasis:
GENERAL VERRILLI: And third, I want to expand on what Ms. Bonauto said, that — that — and I think you, Mr. Chief Justice, you did recognize this, that the decision to leave this to the political process is going to impose enormous costs that this Court thought were costs of constitutional stature in Windsor. Thousands and thousands of people are going to live out their lives and go to their deaths without their States ever recognizing the equal dignity of their relationships.
Notice that reference to Windsor, and the phrase “equal dignity.” That is the phrase pulled directly out of Kennedy’s Windsor opinion. This is smartly calculated on the liberals’ part. They are leveraging Kennedy’s own words against the conservative arguments.
Make no mistake here: if this comes down to a 5–4 decision, and it probably will, Kennedy will be the hinge ether way. So it is tremendously important to judge his concerns in this regard. And it was at precisely this point in oral arguments that he joined the discussion on the same topic of “wait and see.” Should states be allowed to “wait and see,” or should they be forced immediately by this case?
JUSTICE KENNEDY: Well, part of wait and see, I suppose, is to ascertain whether the social science, the new studies are accurate. But that — it seems to me, then, that we should not consult at all the social science on this, because it’s too new. You think — you say we don’t need to wait for changes. So it seems to me that if we’re not going to wait, then it’s only fair for us to say, well, we’re not going to consult social science.
That sounds like he’s in favor of some more wait and see. But we’ll have to wait and see, I suppose, and weigh this against his other questions. The liberal answers:
GENERAL VERRILLI: Yes. And, Your Honor, I actually think that’s quite a critical point that goes to the questions that Your Honor was asking earlier. I do think Lawrence was an important catalyst that has brought us to where we are today. And I think what Lawrence did was provide an assurance that gay and lesbian couples could live openly in society as free people and start families and raise families and participate fully in their communities without fear.
And there are — two things flow from that, I think. One is that has brought us to the point where we understand now, in a way even that we did not fully understand in Lawrence, that gay and lesbian people and gay and lesbian couples are full and equal members of the community. And what we once thought of as necessary and proper reasons for ostracizing and marginalizing gay people, we now understand do not justify that kind of impression.
Verrilli is smart: he is now citing “Lawrence” to answer Kennedy. Lawrence v. Texas is the case, also written by Kennedy, that struck down all state laws against sodomy. Again the liberal is forcing Kennedy to reckon with Kennedy: you got us to where we are today. Thanks! And the implication is: Now please finish the job.
Roberts notes that a difference still persists despite Lawrence.
CHIEF JUSTICE ROBERTS: The difference, of course, is Lawrence, the whole argument is the State cannot intrude on that personal relationship. This, it seems to me, is — is different in that what the argument is is the State must sanction. It must approve that relationship. They’re two different questions.
GENERAL VERRILLI: It is different, I agree. And I — and it leads to the second thing I think that the — that the Lawrence catalyzed for our society, was it put gay and lesbian couples, gay and lesbian people, in a position for the first time in our history to be able to lay claim to the abiding promise of the Fourteenth Amendment in a way that was just impossible when they were marginalized and ostracized.
And you’re right, Mr. Chief Justice, this is about equal participation, participation on equal terms in a State-conferred — a State-conferred status, a State institution. That is different than Lawrence, but I do think that what Lawrence has allowed us to see is that the justifications for excluding gay and lesbian couples from equal participation in this institution just hold up.
Things took a bit of a turn, however, when the lawyer representing the conservative interest was questioned. When the lawyer argued that changing the definition of something that has not changed for “generations,” and which could have profound consequences—part of the classic “wait and see” plea—Kennedy seemed much more interested in equality and “dignity”:
JUSTICE KENNEDY: But that — that assumes that same-sex couples could not have the more noble purpose, and that’s the whole point. Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage. We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.
Kennedy stuck with this understanding despite the lawyer’s attempts to refute it. Whether the lawyer was right or not does not matter. Kennedy is the swing vote, and if he sticks with “equal dignity” over historical precedent—rightly or wrongly—that is how the Court will decide.
So which will it be? What will determine whether Kennedy will be persuaded by the immediate application of “equal dignity”—which he clearly believes in—or by the fear of overturning “millennia” of history? The only thing is what Scalia said: the Court’s “sense of what it can get away with.” Except, in this case, it really comes down to only Justice Kennedy’s sense of what he can get away with.
And what is the sanction against him if he applies equality immediately against all historical precedent? He will not be removed from office. He cannot endure any more criticism from conservatives that he received already for Lawrence and Windsor. Perhaps if there was a credible threat of some states seceding over this it may check his decisions—but that’s unlikely. So what’s left? There will be little more than a loud grumble and a reshuffling of certain laws and relationships as conservatives and religious groups adapt to the new reality.
In short, I don’t see anything to prevent Kennedy from opining in favor of same-sex marriages. And the truth is, I have only addressed the first half of the hurdles faced by conservatives in this case. There is a chance the second question involved—which I have not even touched here—could wreck the system even if this one is decided in favor of conservatives.