The Supreme Court will hear oral arguments in the watershed same-sex marriage cases consolidated under Obergefell v. Hodges on Tuesday, April 28. These arguments have the quality of a movie sequel: This is the second time in two years that the same group of nine justices has heard argument on whether states may constitutionally ban same-sex marriage. By looking back at oral arguments from the earlier cases, we can review what was on the justices’ minds then, and possibly now. We can also take a crack at answering the justices’ questions for them.
Justice Antonin Scalia, during oral arguments in Hollingsworth v. Perry (2013), asked: “When did it become unconstitutional to prohibit homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?”
At least by 2003. The framers of the original Bill of Rights (1791) and of the 14th Amendment (1868) obviously did not think those provisions forbade bans on same-sex marriage. Scalia’s question came during a standoff between two originalists (individuals who interpret the Constitution according to its original meaning), when he told plaintiffs’ attorney Ted Olson to “give me a date” when that understanding changed. Olson refused, observing that the Supreme Court itself generally could not pinpoint dates for when other long-accepted practices became unconstitutional. Olson is right—it would be hard to say when sex-based classifications became constitutionally suspect under the Equal Protection Clause of the 14th Amendment, which does not mention women. But Scalia would not let go. For many of us in the courtroom, this was the most epic showdown of the day.
With regard to same-sex marriage, Scalia has been willing to provide litigants with that sort of precision. He did so, implicitly, in 2003, when the Supreme Court struck down Texas’s ban on same-sex sodomy, holding that the law served “no legitimate state interest.” In a dissent, Scalia warned that the decision would conjure the specter of same-sex marriage, writing: “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct … what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.” He concluded: “This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this court.”
Scalia once described himself as a “faint-hearted” originalist, meaning that he believes other factors, such as intervening Supreme Court precedent, should permit departures from original meaning. He could not, for instance, imagine “upholding a statute that imposes the punishment of flogging.” “I am an originalist,” he elaborated. “I am not a nut.” (He subsequently repudiated this “faintheartedness,” which raises its own problems—a stouthearted originalist would have to accept many a nutty outcome, with flogging being the least of it.) But to the extent that the Supreme Court’s precedents matter to him, same-sex marriage bans became unconstitutional at least in 2003, when he himself interpreted a Supreme Court decision to require their ultimate invalidation.
How can the Constitution strike down a definition of marriage that was not created with discriminatory intent? Chief Justice John Roberts, in Hollingsworth, described opposite-sex marriage as an “institution that’s been around since time immemorial.” He stated: “I’m not sure that it’s right to view this as excluding a particular group. When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals.”
Chief Justice Roberts is clearly correct that marriage, in its origins, was not fashioned to box out gays. Yet the Supreme Court has found that even when state institutions are not created with discriminatory intent, they can be maintained with such intent in a manner that renders them constitutionally invalid. In the 1982 case of Rogers v. Lodge, the Supreme Court struck down an at-large election system because it diluted the voting power of blacks. It upheld the findings of the district court, which had acknowledged that while the at-large electoral system was “neutral in origin,” it “has been subverted to invidious purposes.”
Similarly, the plaintiffs need not argue that a discriminatory purpose animated the creation of marriage. They need only contend that the opposite-sex restriction has been sustained for constitutionally illicit reasons. Indeed, the case here is stronger than it was in Rogers. States have not just relied on age-old heterosexual-only marriage laws to keep gays from marrying. Instead, they have enacted new statutes and state constitutional amendments to reinforce the restrictions. And it’s clear that anti-gay sentiment motivated much of that reinforcement, as many lower courts have found. The new laws tended to do more than just ban marriage; they also banned same-sex civil unions and other protections, providing more evidence of anti-gay purpose. Ohio’s constitutional ban—which is before the Supreme Court on Tuesday—forbids the recognition of “a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effect of marriage.”
Justice Scalia asked in Hollingsworth oral arguments: “If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to … raising a child in a single-sex family, whether that is harmful to the child or not … Do you know the answer to that—whether it harms or helps the child?”
Yes, we do. One recurring theme throughout the oral arguments in 2013 was whether enough social science supported the idea that children did as well growing up with opposite-sex parents as with same-sex parents. The social science data collected for more than three decades overwhelmingly shows that children fare just as well regardless of the orientation of their parents. For this reason, the American Psychiatric Association, the American Psychological Association, the National Association for Social Workers, and, yes, the American Sociological Association, all support same-sex parenting—and same-sex marriage. If we lack data, it is data concerning the parenting abilities of married same-sex parents. (It is, of course, the opponents of marriage equality who have prevented these marriages and therefore this data from existing.) Unless the argument is that married same-sex couples would be worse parents than unmarried same-sex couples, those decades of data should matter.
One way to track the remarkable progress of gay rights is to look back on how the relationship between gay adults and children has been portrayed. In the 1970s, the singer Anita Bryant led a “Save Our Children” campaign that defeated an anti-discrimination ordinance by casting gays as molesters and recruiters of children. The Proposition 8 campaign in California in 2008 made heavy use of the tagline “Protect Our Children,” which analogously cast gays as people who would prey on children or indoctrinate them into the “homosexual lifestyle.” One of the five official proponents of Prop 8, Bill Tam, testified at the trial challenging Prop 8 that he had purveyed messages in the campaign about how “homosexuals are 12 times more likely to molest children”—an argument that child-welfare experts have long condemned as false and dangerous.
In an instance of what Yale law professor Jack Balkin calls “ideological drift,” the “Protect Our Children” theme has drifted from the right to left of the ideological spectrum. Within a strikingly brief span, the protection of children has shifted from an argument against same-sex marriage to an argument for it. When President Obama came out in favor of gay marriage in 2012, he repeatedly alluded to gay adults as parents. He wondered if opponents of same-sex marriage had “had the experience that I have had of seeing same-sex couples who are as committed, as monogamous, as responsible—as loving a group of parents as any heterosexual couple that I know. And in some cases, more so.” Justice Anthony Kennedy arguably completed that movement when he mentioned those children in the Hollingsworth oral argument: “There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?” He subsequently observed in his United States v. Windsor majority opinion that the federal ban on same-sex marriage “humiliates tens of thousands of children now being raised by same-sex couples.” Put differently, while same-sex parents don’t hurt children, prohibitions on same-sex marriage do.
Justice Kennedy asked in Hollingsworth: “Do you believe [a ban on same-sex marriage] can be treated as a gender-based classification? It’s a difficult question that I’ve been trying to wrestle with.”
Yes. Bans on same-sex marriage can be classified much more obviously on the basis of sex than on the basis of sexual orientation. In the upcoming case, James Obergefell was prohibited from marrying his now-deceased partner, John Arthur, because of their sexes, not their orientations. If John had been a woman, they could have married, regardless of their sexual orientations.
Critics of this analysis contend that bans on same-sex marriage are gender-neutral because both men and women are barred from marrying someone of the same sex. However, this argument has been made—and roundly rejected—in other contexts. In the 1883 case of Pace v. Alabama, the Court upheld a ban on interracial marriage by observing that the “punishment of each offending person, whether white or black, is the same.” The landmark case of Loving v. Virginia (1967) flatly rejected that claim, arguing that such rhetoric ignored the “white supremacy” clearly effectuated by the statutes.
The answer to Justice Kennedy’s question matters because gender-based classifications already draw a heightened form of scrutiny from the Supreme Court. In contrast, the court has not clearly articulated whether heightened scrutiny applies in the case of sexual orientation. Because same-sex marriage affects gays and lesbians the most, the issue has naturally been framed less as sex discrimination and more as orientation discrimination. (“The life of law,” Justice Oliver Wendell Holmes reminds us, “has not been logic, it has been experience.”) However, as lower court judge Marsha Berzon points out in a thoughtful opinion that gives a fuller answer to Justice Kennedy’s question, the sex discrimination claim and the sexual orientation discrimination claim are not mutually exclusive.
Chief Justice Roberts asked in Windsor: “You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is powerful, do you? … As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
This question is important because the Supreme Court has deemed “political powerlessness” to be a factor in determining whether a group could receive the heightened judicial protection that women or racial minorities currently receive. As the lawyer to whom the question was posed, Roberta Kaplan, said, “gay people are far weaker than women were at the time of Frontiero,” referring to Frontiero v. Richardson, the 1973 case in which the court first intimated that restrictions on women should receive heightened scrutiny. Kaplan is right—in 1973, women had broad federal protections with regard to employment nondiscrimination, including the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. The Equal Rights Amendment had been passed by both houses of Congress and had passed in a majority of states.
Perhaps the deeper point, however, is that “political powerlessness” is a term of art in constitutional analysis. The paradox of political power is that a group usually must have a massive amount of political power before it can be deemed politically powerless by the Supreme Court. Groups that are truly politically powerless usually cannot garner the attention of any branch of government, including the judiciary. It took massive mobilization on the part of women before the Supreme Court could see the injustice perpetrated by sex discrimination. It would be ironic if the success of gays and lesbians in their mobilization, which got them on the Supreme Court’s docket in the first place, prevented the court from protecting them because they were deemed too powerful when they finally made it into the gallery of the highest court in the land to make their case.