Overreading Schuette's Rhetoric in the SSM Cases

by Michael Dorf

State government lawyers defending state bans on same-sex marriage in the federal appeals courts have recently added a new argument to their arsenal. Last month's Supreme Court decision in Schuette v. Coalition to Defend Affirmative Action, they say, demonstrates the importance of leaving controversial social policy questions to state legislatures. This new argument can be found in the government's reply brief in the Virginia case, as well as in a supplemental letter in the Utah case. Here I'll explain why this argument is misguided.

In my prior blog post on Schuette, I described the majority opinion as a paean to the positive liberty of citizens to make their own decisions about race-based affirmative action. The opinion speaks in general terms. Here's the rhetorical high note:

Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process. 

That language is generic. Substitute "Virginia" or "Utah" for "Michigan", and substitute "judges" for "university officials or faculties", and you have an argument that seemingly carries over quite readily. It's the very familiar argument--these days often captured by Bickel's notion of the "countermajoritarian difficulty" but going back to Jefferson and others in the earliest days of the Republic--that judicial review is undemocratic because it substitutes elite opinion for the views of the People or their elected representatives. If that's true with respect to race-based affirmative action, the state appellants in the SSM cases say, then it's also true with respect to SSM.

How good is that argument? Not very. Taken at face value, Justice Kennedy's argument in Schuette would leave to the electorate such questions as: whether to permit racially segregated schools; whether to permit complete handgun bans; whether to permit organized sectarian prayer in schools; whether to permit offensive speech on the internet; etc. Yet the Constitution as construed by the Court clearly does not leave such matters to the electorate. So why does Justice Kennedy say it would be "unprecedented" to take such matters out of the hands of the electorate?

The answer is pretty plainly context. Justice Kennedy's rhetoric in Schuette cannot be extended beyond the context of that case without blowing up just about all of modern constitutional law--something Justice Kennedy and the rest of the majority cannot have intended.

In Schuette, the Court was asked to rule that the Constitution takes away from the voters of a state in a statewide referendum the decision whether to deploy a practice--race-based affirmative action--that it was already determined was constitutionally optional. The Court said no (and as I said in my prior blog post, I agree with that bottom line, even though I favor affirmative action as a policy matter). So all that Justice Kennedy was saying in Schuette was that it would be unprecedented to take an issue away from the voters of a state when the Constitution permits states to resolve that issue in the way that the voters have resolved it.

Put differently, despite its apparent sweep, the only plausible way to understand the Schuette language I quoted above is as a description of how things work when the substance of legislation does not violate constitutional rights (or some other constitutional limitation). And because the Court had long ago ruled that the Constitution does not require affirmative action (indeed, that the Constitution barely permits it), the absence of affirmative action doesn't violate constitutional rights (or any other constitutional limits).

But of course in the SSM cases, the very question to be decided s whether the denial of SSM violates constitutional rights. And so the Schuette language does not come into play. Suppose that the Court holds that there is no right to SSM. If so, then the Schuette language would knock out an argument that even though a state need not recognize a right to SSM, it cannot move responsibility for SSM from the local level to the statewide level. Given Schuette's rejection of the political process doctrine, that latter argument would fail.

However, the political process argument wouldn't come into play at all if the Court determines that there is a right to SSM--except in the much broader sense that whenever the Court is deciding whether to recognize any claim of right it is cognizant of the countermajoritarian difficulty. But just as it overcame the countermajoritarian difficulty in other contexts, so it would here if, under the applicable tests, the Court concludes that there is a right to SSM. And to resist that conclusion, the states must rely on the arguments that appeared in their briefs pre-Schuette.

Those arguments are looking increasingly foolish.  The mouthbreathing right continues to invoke ugly stereotypes and bogus data about children in support of SSM bans, but for the most part, the civilized anti-SSM bar has been reduced to the following claim: that SSM bans are justified because permitting same-sex couples to marry would (somehow) undermine the efficacy of opposite-sex marriage in addressing accidental procreation. Good luck with that.