The Case That Dare Not Speak Its Naim

By Mike Dorf

In Sunday's NY Times, Adam Liptak addressed the question of whether fear of another Roe v. Wade could influence the Supreme Court in its decision of the same-sex marriage cases.  It's certainly possible that one or more Justices will indeed have that fear, but Liptak's article suggests--incorrectly in my view--that this is a realistic fear.   As I wrote last week, I think that both the direction and the intensity of public opinion on SSM makes "massive resistance" to a decision recognizing a right to SSM quite unlikely.

The leading expert on backlash w/r/t SSM is Harvard Law Professor Mike Klarman.  In my post last week, I noted that in Klarman's 2012 book, he warns of the possibility of backlash but that it's possible that Klarman has softened (from an already-hedged position) in his calculation of the odds.  Liptak cites Klarman's book and quotes Klarman expressing the view that the intensity of opposition ot SSM is nothing like the intensity of opposition to abortion.  Interestingly,the very same day that Liptak's article appeared, so did a Los Angeles Times op-ed by Klarman himself, in which Klarman explains systematically why backlash against a Supreme Court decision recognizing SSM is unlikely.

To be sure, even if the Justices don't need to worry about backlash, they still might.  If they do, and if they also want to avoid writing an opinion that will come to be regarded as infamous, they will likely look for some way to decide the cases on narrow grounds.  There are two possibilities--what I labeled options (1) and (3) respectively in my post yesterday:
(1) No ruling on the merits because executive non-defense means no case or controversy; . . . (3) Plaintiffs win "small" in the sense that Prop 8 is invalid in California (perhaps because, following the 9th Circuit, the decision to take away marriage was rooted in animus) but the Court does not say that other states must recognize SSM, and, in Windsor, the Court relies on some DOMA-specific ground like federalism or the animus that motivated Congress . . . .
As I noted yesterday, I think it's easier to write an opinion for option (3) in Windsor than in Perry, but here I want to say a word or two about option (1).  I won't get into the underlying strength and weaknesses of the arguments for saying there's no standing, except to say that considered simply as a matter of standing law, I would favor a finding of standing in both cases.  It seems to me that the courts ought to reward an executive branch actor (whether at the state or the federal level) who decides that he will enforce-but-not-defend a law he thinks is unconstitutional, on the ground that this is a useful way of obtaining a judicial resolution of the matter.

But suppose that a majority either disagrees with my legal analysis of the standing issues or thinks that the standing questions are close enough that they provide sufficient cover for the Court to use to duck the direct question of whether SSM is constitutionally protected.  What kind of decision would that produce?

The closest parallel--as the intentionally punny title of this post suggests--might be Naim v. Naim.  You've never heard of Naim?  That's because it didn't decide very much at all. The Virginia Supreme Court had rejected a federal constitutional challenge to its anti-miscegenation law.  The case fell within what was then the U.S. Supreme Court's mandatory appellate jurisdiction.  Nonetheless, the Justices ducked the case by vacating and remanding to the Virginia Supreme Court for clarification of a jurisdictional point.  The Virginia Supreme Court then held that it lacked the authority to remand further to the lower state court and reaffirmed its earlier holding.  That was 1955. The U.S. Supreme Court would not address the merits of a challenge to an anti-miscegenation law until 1967, in  another case from Virginia, Loving v. Virginia.

Did Naim taint the Court's subsequent decision in Loving?  No.  But that doesn't mean that the Supreme Court could get away with a similar non-merits ruling in the SSM cases.  For one thing, Naim was mostly beneath the radar.  By contrast, the SSM cases are going to be the subject of full argument in the highest profile cases of the current Term.

Moreover, there's an important merits difference.  Naim came to the Court just a year after Brown v. Board, at a time when the South was already almost literally up in arms.  Private correspondence of the Justices--especially Felix Frankfurter--shows them worried that if the Court found a right to interracial marriage in 1955 it could spark a second Civil War.  And so waiting another decade to tackle anti-miscegenation laws made tactical sense as a means of avoiding backlash, even if the means used for ducking the issue were somewhat unprincipled.

By contrast, it has already been a decade since the Court's last major gay rights ruling--Lawrence v. Texas. And with public sentiment pretty clearly moving irreversibly towards favoring legal SSM, there is little reason to worry about major backlash.  In other words, even if the Court could get away with using jurisdictional grounds to duck a decision in the SSM case, there should be much less of a perceived need to do so here than there was in Naim.