There’s an old saying that, despite occasional claims that courts are just “umpires” who decide what the law requires and follow it, it is still true that courts do follow the election returns. As the nation has evolved, quite dramatically in recent years, to embrace the idea of marriage equality, judges have increasingly found themselves not wanting to be on the wrong side of history. For at least the last twenty-five years, the Supreme Court could have considered and sought to resolve, once and for all, the constitutional debate over state laws that ban gay marriage. But even in addressing clearly related issues, the Court has often seemed to go out of its way to avoid giving any signals on how the gay marriage debate would be resolved. And, of course, we are all still waiting for the Court to take the right case and determine the constitutional merits of state laws, and even state constitutions, that reject marriage equality.
I have a good friend who happens to be gay and is from Utah. When a federal court concluded that Utah’s ban on gay marriage was unconstitutional, the decision prompted serious consideration as to whether he and his partner would return to the area where he grew up and formalize their relationship. Of course, he knew, and knows, that there is still some waiting to do, as higher courts address the constitutional questions. Despite knowing this was all too true, I suggested to Matthew that the dam may have broken and time is ultimately on his side.
Developments across the nation confirm that I may be right. One of the signs of Supreme Court reluctance on the issue is that it has declined to answer the question whether laws that classify based on sexual orientation, to the detriment of the LGBT community, will always be subject to a higher level of scrutiny. Laws that disadvantage citizens based on their race or gender have an uphill climb to make; but the Court has never clarified whether similar laws that disadvantage gays will face the same challenge. A factor no doubt is that the nation as a whole considers government racial and sexual discrimination to be dubiously grounded and agrees that discriminatory laws are presumptively illegitimate.
When the Supreme Court invalidated laws that required the creation of segregated public schools, conservatives across the nation—and especially in the South—decried the decision in Brown as ignoring years of established precedent and conflicting with the original understanding of the Fourteenth Amendment’s Equal Protection Clause. That was in the 1950’s. In the 1990’s, and since, conservatives in the courts and the legal academy have gone to great lengths to contend that Brown correctly advanced the goal of establishing the equal citizenship that was the central goal of the Fourteenth Amendment. So the decision did not conflict with the insistence that we are bound by the original understanding of constitution. The lesson: legal scholars and jurists who are liberal and activist are not the only ones who read the election returns. The rejection of Jim Crow segregation is now central to the American constitutional consensus.
The nation has gone through the same process as to laws that discriminate against women. In the 1870’s, the Supreme Court held that Illinois could legally deny women the right to becomes members of that state bar—and hence women could be legally prevented from practicing law. In the twentieth century, a state law made it illegal for a woman to function as a bar tender, even if she was an equal owner of the bar itself—and the law was upheld by the Supreme Court. All this began to change in the 1970’s, when the nation’s people came to believe that laws that suppressed the rights and interests of women could not be reconciled with their “equal citizenship.” As the nation’s citizenry had changed, courts across the nation have gradually begun to see the threat to equal citizenship that is presented by laws that disadvantage citizens based on their status as gay. But an increasingly conservative Supreme Court has preferred not to act in a way that may move ahead of the sentiments of the citizenry.
There are now seventeen states that have adopted the idea of marriage equality. One important trend is that, in recent years, we now have state legislatures that have taken the political step, representing the views of citizens in their states, of embracing the legal recognition of gay marriage. And in United v. Windsor last June, as it invalidated the federal DOMA statute the Supreme Court extended its prior rulings that government cannot arbitrarily act to disadvantage people based on their sexual orientation. Windsor, and especially its reasoning, provided an important part of the grounding for the federal decision in Utah invalidating that state’s ban on gay marriage. And Oklahoma adopted the same view, also relying on Windsor. Finally, it is noteworthy that the Nevada attorney general, Catherine Cortez Masto, and the state’s governor, Brian Sandoval, have decided not to defend the Nevada ban on gay marriage. Their decision was based in part on the Ninth Circuit’s ruling that expressly adopted heightened scrutiny as to government action based on sexual orientation. In that decision, the court also extended the ban on using race or sex in issuing peremptory challenges to prospective jurors to include such challenges for gays. At least one commentator, Mark Stern, offered that the Ninth Circuit ruling “did nothing less than herald a new era for gay rights.” Apparently important Nevada officials agree. Indeed, the dam may have burst.