Passive Virtues Versus Underenforcement in DOMA and Prop 8 Cases

By Mike Dorf

Senator Rob Portman's recent announcement that he now supports same-sex marriage is welcome news, notwithstanding the (legitimate) complaint that it's too bad he does not generalize his politics to consider the plight of people who are not his children.  As Matthew Yglesias put it on Slate: "The great challenge for a senator isn't to go to Washington and represent the problems of his own family. It's to try to obtain the intellectual and moral perspective necessary to represent the problems of the people who don't have direct access to the corridors of power."

Yglesias rightly compares Portman's epiphany to Sarah Palin's willingness to support government spending on social welfare programs for the benefit of families with children with disabilities, but it's worth noting that the Palin/Portman approach is itself an improvement over President Ronald Reagan, who, upon hearing of individuals who were disadvantaged by his policies, reportedly sought ways to help those individuals.  At least Palin and Portman generalized far enough to champion policies that would benefit other disabled children and other same-sex couples.  A Reaganite response might be to champion programs for the benefit of Trig Palin and same-sex marriage for Will Portman.

It's also worth noting that Portman's position--while still bold for a current Republican office-holder--puts him where President Obama was last May: he favors legalizing same-sex marriage through the electoral process.  Portman wrote last week:
I believe change should come about through the democratic process in the states. Judicial intervention from Washington would circumvent that process as it’s moving in the direction of recognizing marriage for same-sex couples. An expansive court ruling would run the risk of deepening divisions rather than resolving them.
That's an awkward, though hardly unprecedented, position on a civil rights issue.  Portman thinks that denying same-sex couples the right to marry denies them basic equality.  So why is he unwilling to say that it therefore denies them equal protection of the laws in violation of the Fourteenth Amendment (and, so far as the federal government is concerned, the equal protection component of the Fifth Amendment's due process clause)?

One possibility might be that Portman thinks that equal protection does guarantee a constitutional right of same-sex marriage but that it is properly "underenforced" by the judiciary.  In this sort of view--championed most forcefully by Larry Sager--judges and politicians share responsibility for implementing the Constitution, but because of their respective institutional advantages and disadvantages, they concentrate on different tasks.  Thus, legislators may be obligated by the principle of equal protection to guarantee all citizens a right to access to adequate health care, to education, and to other so-called "positive" rights, but because these rights consist of complex packages of goods that can only be distributed based on multifarious policy judgments, courts should not attempt to enforce such rights, or at least not attempt to enforce them in full.

I find Sager's under-enforcement thesis quite attractive, but I would note that it seems a poor fit for the current context and, to my knowledge, Sager has not argued that courts should deny a right to same-sex marriage because of institutional complexity or the need to make tough decisions about how to allocate resources.  To be sure, legal recognition of same-sex marriage sometimes has implications for the public fisc (as the inheritance issue in the Windsor case now before the SCOTUS illustrates), but for the most part the issue is straightforward--a matter of formal equality.  Saying that there is (or is not) a right to same-sex marriage looks like it fits right in the Court's wheelhouse.

In any event, Portman did not invoke a Sager-style under-enforcement argument for distinguishing between legislative repeal of restrictions on same-sex marriage and judicial invalidation of such restrictions.  Instead, his worry that "an expansive court ruling would run the risk of deepening divisions" sounds in Frankfurterian/Bickelian worries about the Court outstripping its legitimacy.  A more contemporary version of this worry can be found in the ambivalence expressed by Michael Klarman in his book From the Closet to the Altar.  Judicial rulings don't always spark backlash but they can, and on same-sex marriage, they often have.

Is Portman (and to the extent that he hasn't moved since publication of his book last year, Klarman) right to worry about backlash?  Depending on how the Supreme Court rules on DOMA and Prop 8, we may find out soon enough, but my sense is probably not.  Opposition to SSM is becoming a regional phenomenon and, given the demographic trends, will lack political salience everywhere in a generation or less.  It's nearly impossible to imagine anything resembling the "massive resistance" that met Brown v. Board arising to challenge a SCOTUS ruling finding a broad right to SSM.

There may yet be occasions when resort to Bickel's "passive virtues" of avoidance is warranted, but it increasingly looks like this is not one of them.  Given the momentum on this issue, the Court can do the right thing without worrying much about any serious blow to its legitimacy.