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 Fivethirtyeight.com, 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.