Monday, December 20, 2010

Don't Ask Don't Tell, Hardwick, and the Seventeen Year Itch

By Mike Dorf

Seventeen years after the Supreme Court decided Bowers v. Hardwick--finding the claim to a fundamental right of consenting adults to engage in same-sex sexual intimacy "at best, facetious"--the SCOTUS reversed course.  In Lawrence v. Texas the Court repdudiated Hardwick and, with it, the homophobia that underwrote the decision.  Now, seventeen years after Congress codified the prohibition on military service by openly gay and lesbian men and women, Congress has voted to repeal that prohibition.  I don't go in much for numerology but I think there may be a lesson in that numerical coincidence.

To begin with the obvious, in law and politics, seventeen years is a long time.  Both Hardwick and Don't-Ask-Don't-Tell ("DADT") were heavily criticized from day one. Momentum for their overturning built slowly however.  There were quite possibly the votes on the Supreme Court to overrule Hardwick as early as 1996, when the Court decided Romer v. Evans.  Despite a provocative dissent by Justice Scalia arguing that the decision was inconsistent with Hardwick, the Romer majority opinion of Justice Kennedy did not even cite Hardwick, much less argue that the result was consistent with Hardwick.  And yet it took another seven years before Hardwick would be swept into the ashbin of history.

Meanwhile, by 1996 support for DADT had also eroded.  According to a chart provided by, at just around the time that the Court was deciding Romer, a majority of Americans for the first time came to favor permitting openly gay and lesbian men and women to serve in the military.  Support for that view would eventually grow to about 75%, where it stands now. But whereas it would take another seven years from 1996 for the Justices to undo Hardwick, it would take twice as long for our sclerotic legislative process to undo DADT.

These facts take on some urgency when one considers that both Hardwick and DADT were reactions against the gay rights movement.  Hardwick could not have been decided twenty years earlier than it was because no claim for a constitutional right to same-sex intimacy would have made it to the Supreme Court.  But Hardwick (the plaintiff) won in the Eleventh Circuit, and he almost won in the Supreme Court.  Almost.  Almost capturing Justice Powell but then losing 5-4, the case made bad law that lasted for seventeen years.

Meanwhile, the American military had excluded gay service members for as long as anyone can remember.  Yet the political opposition to relaxing the ban was cemented by President Clinton's ill-fated attempt to redeem a campaign promise to undo the policy.  And as we have seen, the resulting compromise of DADT has been remarkably sticky, only now giving up the ghost despite its unpopularity for roughly a decade and a half.

Thus we come to my worry: With same-sex marriage litigation now before the 9th Circuit and the Defense of Marriage Act before the First Circuit, we can and should worry that getting to the SCOTUS just a little too soon could do a lot of damage.  Using our seventeen-year figure as the lodestar, a SCOTUS decision coming out of Perry and rejecting same-sex marriage in 2012 (which is when I would anticipate the case being decided) would stick until 2029.  To be sure, the Court could swing the other way, and if it did, I do not see how one could possibly get a 2/3 vote in both houses of Congress to propose a constitutional amendment banning same-sex marriage, absent a double-dip that results in a Republican landslide in 2012 (and if that happens we've got all sorts of problems).  But there are no guarantees.

I also have an anti-worry: Proceeding by litigation versus legislation doesn't seem like such a dangerous course.  Juxtaposing Hardwick with DADT, we see that a premature push--whether via litigation or attempted legislation--can prompt backlash on roughly the same scale.  So if I were advising the LGBT legal/political activist community (as I actually do from time to time) I would say: "Go for it on all fronts."  Yes, I'm nervous about how all of this could end up, but both Plan A (legislation/referenda) has at least as much risk as Plan B (litigation), and Plan C (do nothing) is not an option.


Mortimer Brezny said...

I think that litigation is a bad move. The repeal of DADT says that the political system is working. there is no reason for SCOTUS to intervene. The political system works just fine. It really does. Let the legislatures handle it.

Howard Wasserman said...

On a slightly different point: 17 years is about where SCOTUS term-limits proposals set the term for each justice. So the term limits would match roughly to doctrinal life.

Joe said...

Litigation was used as a pressure point on the political repeal of DADT, the two working in tandem on various issues.

Bowers in hindsight didn't seem to hurt the movement in the long run. If anything, it was so blatantly wrong (thanks White!) that as noted, Romer didn't even mention it. State courts, even Georgia, protected gays notwithstanding. By 2003, it was already clearly obsolete.

Strategically, I think the state litigation policy on the SSM front was a good one. I think the MA case was worth the risk (the DOMA litigation). Still, in the long run, I think the Prop 8 litigation will be okay. The courts will probably dispose it on standing grounds. Finding a narrow way to dispose of things is pretty common (see, e.g., NY v. Uplinger).

egarber said...

On Prop 8, maybe the best outcome would be for the Appeals Court to find that proponents have no standing -- in which the case the district court ruling would stand. That would mean the constitutional right would only apply in California, since the state is a party. Do I have all that right?

If so, the SCoTUS won't take a look quite yet. Other states can watch whether the institution of marriage burns down in CA :), before making their own moves.

michael a. livingston said...

There's a great "drash" in here about 10 + 7 = 17, something like that, but you have to make sure it's a liberal synagogue

Rasmussen Law said...

There is risk in litigation but I also believe it is inevitable. With SSM being addressed in a variety of ways throughout the 50 states, it seems unlikely that it wouldn't make it to the Supremes sometime in the next 4-6 years. What is encouraging to me is how flawlessly the SSM proponents litigated the Prop 8 issue. That, combined with how badly the Prop 8 supporters have litigated the issue, gives the issue a real chance. Ideology will play a role, but execution is important too, and the execution has been virtually perfect. It may be risky, but given how well it was done, I wouldn't change it now. The record in the lower court and it's legal opinion are the best possible vehicle to get this in front of the Supreme's that is likely to come along for a decade.

Michael Ejercito said...

The cat was out of the bag even before 2009 (when the Perry case was filed) when similar challenges were filed in Nebraska and Oklahoma. In particular, in Oklahoma the case still awaits a decision on the merits by the trial court.
That would mean the constitutional right would only apply in California, since the state is a party. Do I have all that right?
The state itself is not a party. The defendants are certain state and local government officials. Due to the nature of trial court jurisdiction (that trial courts only decided cases between the litigants) , the ruling, is upheld on the basis of lack of standing, would only practically affect two counties. In fact, Michael C. Dorf argued that the ruling in itself only guarantees marriage licenses to the plaintiffs from the defendant county clerks . Other same-sex couples, in Los Angeles County, the rest of California, or the rest of the country, must initiate their own litigation.
The record in the lower court and it's legal opinion are the best possible vehicle to get this in front of the Supreme's that is likely to come along for a decade.
But remember there is already pending litigation in Texas and Oklahoma concerning these constitutional questions.