by Michael Dorf
In my latest Verdict column, I take the occasion of next week's oral argument in the same-sex marriage cases to reflect on some broader questions about the relation between social change and judicial rulings. I make a number of points, including these: (1) Progress on LGBT rights has been very rapid in recent years but partly that's a tipping-point effect that disguises the long steady progress; (2) in general, majoritarian politics lends itself to tipping points, because just below 50% support for some legal change means that the status quo likely remains, whereas just above 50% means that it can change rapidly; (3) the courts play an important role in this dynamic, although hardly the primary one; (4) because legal change follows rather than leads social change, the worst abuses of minorities and others will typically occur before they have legal protection; but (5) it does not follow that progress in the social and political realm should prevent rights claimants from having their claims recognized. Too cryptic? Read the column.
I presented a version of the foregoing, along with other thoughts on the SSM cases, to a constitutional law workshop at UC-Berkeley Law School on Monday. A lively discussion ensued. Here I'd like to focus on one aspect of that discussion: What, if anything, is at stake in the case?
The "if anything" may sound jarring, but I ask because I continue to think that there is virtually no chance that the SCOTUS will rule against the plaintiffs/petitioners. As I have noted on numerous occasions (e.g., here), if the Court were to unexpectedly hold that there is no right to SSM, then the only people who got married in reliance on lower federal court rulings that there is a right to SSM who would certainly be entitled to remain married for state purposes would be those who were actual parties to the litigation. The thousands of others who were married over the objections of state officials could find themselves retroactively de-married, a fate as cruel as it would be confusing. The Justices must have been aware of these realities when they permitted the interim marriages to go forward, and so, either the matter is a foregone conclusion or the Justices have lost their minds.
I shall proceed on the assumption that the Justices have not lost their minds. What, then, is at stake? At least the following:
(1) Anti-LGBT discrimination in other contexts
Even if the Court finds a right to SSM, it might be possible for states and their sub-divisions to discriminate on the basis of sexual orientation and gender identity as to employment, benefits, etc. Much depends on how the Court reaches the result. The best approach, in my view, would be to find that discrimination on the basis of sexual orientation triggers heightened scrutiny. That would still leave private anti-LGBT discrimination unregulated, of course, but the suspect and semi-suspect classifications for constitutional purposes often serve as a model for local, state, and federal statutory protection. A clear ruling by the SCOTUS on this point would carry considerable persuasive weight with legislators. To be sure, as David Schraub noted in the Q&A, there is a risk that heightened scrutiny for sexual orientation could end up doing more harm than good for LGBT Americans because the Court's "symmetry" principle means that then laws advantaging them would also be subject to heightened scrutiny. That's a real risk, but a small one, I think: There is very little need for affirmative action or the like for LGBT Americans, so more to gain than to lose from suspectness or quasi-suspectness.
(2) Doctrinal Order
Each of the leading gay rights cases in the SCOTUS to this point has been authored by Justice Kennedy, and each has been doctrinally unorthodox. In Romer v. Evans, the Court invalidated Colorado's Amendment 2 because it "defie[d]" conventional scrutiny, applying neither rational basis scrutiny nor heightened scrutiny, nor even exactly something in between. In Lawrence v. Texas, the Court used the structure but not the language of fundamental rights, but lower courts have sometimes construed it as merely applying rational basis scrutiny. And United States v. Windsor blended equality, dignity, and federalism concerns in a way that gave people of various commitments the chance to claim victory. These departures from the conventional doctrine have been a great source of fun for academics and while I think that there is much to be said for Justice Kennedy's unorthodox approach (as I noted here), the doctrine in this area has often felt like it was not done evolving. The SSM cases provide the Court the opportunity to say whether the cases to this point have been a kind of way station en route to treating sexual orientation as a suspect or quasi-suspect classification or whether they herald something new: either a sui generis approach to sexual orientation (but why?) or, more intriguingly, the end of the old structure of tiers of scrutiny as a general matter.
(3) The Legacy of the Other Conservative Justices
Another question posed during the Q&A, this one by Jesse Choper, was whether CJ Roberts might join the liberals and assign the opinion to himself in order to keep it fairly narrow. My answer--which was pretty rank speculation--was that even if the Chief Justice joins the liberals plus Justice Kennedy for a 6-3 ruling, he would likely assign the opinion to Justice Kennedy if Justice wants to write it, as he probably would.
More important than who ends up writing is how the Chief Justice votes. His Windsor dissent could be said to box him in as opposed to a constitutional right to SSM, but Justices routinely vote against a decision and then accept it as precedent. And so, if CJ Roberts reads the writing on the wall and wants to end up on the right side of history, there is wiggle room for him to join the liberals. A 6-3 decision would also make the Court look less political. This too is speculation but my gut instinct tells me that at some level, the Chief Justice wants to vote in favor of the plaintiffs but that he may not be able to bring himself to do so.
Meanwhile, I have very little doubt that Justices Scalia, Thomas, and Alito will vote for the state respondents. The highest stakes here may be for Justice Scalia. His dissents in Romer (decrying gay political power) and Lawrence ("Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home") contain culture war language that was inappropriate then but is downright embarrassing now. Justice Scalia's Windsor dissent was much more measured.
I cannot imagine Justice Scalia joining the Court in finding a right to SSM, but for his sake, he ought to write a dissent that is, in tone, more like Judge Sutton's Sixth Circuit ruling--more in sorrow than in anger, and focused on what he regards as the appropriate roles of legislators as opposed to judges. If he really wants to protect or enhance his legacy he would follow the course laid out by Justice Thomas in his Lawrence dissent (which Justice Scalia did not join, even though Justice Thomas joined Justice Scalia's Lawrence dissent). There, Justice Thomas stated that he would vote to repeal a same-sex sodomy ban were he a legislator but that he didn't think he had the authority to invalidate the ban as a Justice. It was a cost-free gesture that showed a certain magnanimity.
Even so, I doubt Justice Scalia will follow suit now, mostly because I don't imagine that he would vote to repeal a SSM ban if he were a legislator. But at the very least, for the long-term good of his own reputation, he should keep his rhetoric in check.