It’s hardly surprising that advocates of same-sex marriage look to the U.S. Supreme Court for help. This time around, though, those who coordinate legal advocacy for same-sex marriage may be demanding too much from any court, undermining the chance of an early legal mandate for nationwide same-sex “marriage.”
Fairly recently, as constitutional things go, three big Supreme Court cases announced that court’s constitutional positions on matters of gay rights. First, it was the court objecting to the targeting of gays for unfavorable legal status. Next, it was the court’s rejection of states criminalizing same-sex sexual relations. Most recently, it was the court’s rejection of the federal ban against recognizing same-sex marriages otherwise recognized by states.
Those cases variously defending same-sex partners were, respectively, Romer v. Evans in 1996, Lawrence v. Texas in 2003, and United States v. Windsor in 2013. In each case, the court revealed its inclinations for fair, equal treatment of gay and lesbian citizens. The public seems largely to have endorsed those decisions, for good reason.
But in reading the court’s tea leaves in those three cases, advocates for same-sex marriage may be going too far to ask the courts soon to force same-sex marriage on all states, citizens and religious objectors.
It’s one thing to say same-sex partners should not be subjected to legal discrimination. It’s another thing for any court to dictate changes to the traditional meanings of the concept of marriage as defined by most states and their citizens — the traditional arbiters of marriage law.
True, heterosexual partners could still marry if states were ordered also to marry same-sex partners. In that sense, it’s no harm, no foul, to heterosexual partners if same-sex partners were also deemed to be married.
But perhaps there’s something legally serious about state constitutional limitations on the meaning of “marriage” as being only between opposite-gender couples. Maybe majority votes of citizens in a majority of states should be respected. Maybe the federal government should not be forcing its will on those religious adherents who view same-sex marriage as abhorrent. Maybe courts would be straining judicial power to mandate same-sex marriage for all.
People talk about a quickly shifting popular opinion on same-sex marriage. But if so, why do the proponents of same-sex marriage not go to the polls to repeal fairly recent constitutional bans of same-sex marriage in about 30 states?
By sprinting to the courts, advocates of same-sex marriage are revealing implicitly that their cases may not be as viable in the courts of public opinion. The majority may well want to accord substantively equal legal treatment to same-sex partners. But that wouldn’t necessarily mean that a majority wants to change what marriage means. Nor does the process of wringing discrimination out of the law require the courts to dictate the meaning of marriage to every state and citizen.
Same-sex partners can probably be accorded equal rights under the Constitution without mandating that those partners be legally “married” against the will of most states and their citizens. The concept of a civil union could provide a reasonable facsimile that could be ordered in such a way as to respect the substantive rights of same-sex citizens, states and their other citizens without addressing dicey questions of federalism, the Establishment Clause and more.
Justice Anthony Kennedy, in the Windsor case, based part of his rationale on respect for state determinations about the meaning of marriage. Justice Sonia Sotomayor earlier this month stayed a court mandate for same-sex marriage in Utah. Even arch-liberal Justice Ruth Bader Ginsburg has expressed a desire to avoid stepping into a lingering Roe v. Wade-style controversy in the field of gay rights.
In short, civil unions can and may well be mandated as a remedy for equal protection violations without getting onto thin ice constitutionally for scant substantive significance. It would not be surprising to see the Supreme Court soon mandating civil unions. More surprising would be a mandate from the Supreme Court ordering nationwide same-sex marriage.
David Oedel teaches constitutional law at Mercer University Law School.
