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Wednesday, June 18, 2008

A Thought Experiment on Same-Sex Marriage

In honor of yesterday's momentous events in California, I thought it would be appropriate to post to a wider audience a question I sometimes ask my students to prompt a discussion of the proper role of constitutional courts.

After the jump, I offer a very plausible "history" of the evolution of same-sex marriage (no fighting the hypothetical, please!).  The question for those who want to play along at home is, in this hypothetical universe, did the courts (writ large and over the course of the entire period 1995-2025) (a) play an appropriate role in the evolution of our institutions; (b) exceed their proper judicial role; or (c) fall short of living up to their institutional and constitutional responsibilities?

(1) The events up until now happen as in real life (including the Vermont, Mass, and California decision, the adoption of civil unions in a handful of state, DOMA, etc).

(2) Later this year, the Connecticut Supreme Court joins Mass and Calif, while voters in Calif narrowly reject a state const amend to overturn the decision.

(3) In the next two years, NY and a few small states adopt same-sex marriage through the legislative process, while another half dozen states decide to recognize out-of-state same-sex marriages.  In 2010, Congress repeals the portions of DOMA that prohibit the federal government from recognizing same-sex marriages.

(4) Between 2010 and 2020, another 20 states adopt same-sex marriage, most through legislation, but some by court decision.  Sometime late in this period, the federal government by legislation adopts the rule that for the purpose of tax law, employee benefits, etc., it will recognize duly entered same-sex marriages.  The U.S. Supreme Court does not enter the frey on gay marriage, but, in other contexts, hands down a series of decisions strengthening constitutional protections against discrimination based on sexual orientation.

(5) By 2020, 75% of Americans believe that same-sex marriages should be recognized.  Proponents of same-sex marriage begin a litigation campaign to establish that the federal constitutional right to marry extends to same-sex marriages.  In the face of evolving opinion at home, national pressure and the threat of litigation, another dozen states permit same-sex marriage (most be legislation, a few by court decision), bringing the total to 38. 

(6) After five years of posturing, conflicting lower court decisions, and false starts, the Supreme Court in 2025 holds that the Constitution prohibits states from limiting marriage to opposite-sex couples, invalidating the remaining 12 state laws.

Posted by amsiegel on June 18, 2008 at 01:21 PM in Constitutional thoughts | Permalink

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Comments

Very interesting question, but I'm not entirely clear about an important issue: Does "the proper role of constitutional courts" mean "the proper role of courts interpreting the federal constitution," or does it mean "the proper role of courts interpreting state constitutions"? I ask that because in my view, the proper role of courts in a constitutional system depends on that particular constitutional system. I haven't studied state constitutions closely, but my understanding is that state constitutions vary in the role they assign to the judiciary.

Posted by: Orin Kerr | Jun 19, 2008 11:07:20 AM

given the information you've provided, i'm not sure how anyone could argue option C: there simply aren't any stated cases of the courts declining to rule on issues. the courts (rightly) have no avenue for issuing proclamations from the bench in the absence of cases brought before them. so the only real question is weather or not the courts behaved appropriately in the last action in your post, and i don't see how we can really decide that without knowing the specifics of the case they were deciding. certainly one can cite examples of SCOTUS over-reaching and injecting things unrelated to the case at hand in their 200+ year history. i guess i just don't see the question here beyond "is equal access to marriage constitutionally protected".

Posted by: Anthony Sorace | Jun 19, 2008 10:40:55 AM

Just to add a bit of historical context. The Gallup Poll in 1968 asked, "Do you approve or disapprove of marriage between blacks and whites?" The results for whites were 17% approve, 75% disapprove, 7% no opinion. For blacks, the numbers were 56-33-11.

In 2007, the same question. Whites, 75-19-5; blacks, 85-10-4.

Surely we would have to agree that many people are more accepting now of what they see around them -- because what they see is partly the result of the Loving v. Virginia case.

Gallup poll at http://www.gallup.com/poll/1687/Race-Relations.aspx.

Posted by: Ed Still | Jun 18, 2008 9:50:28 PM

You could have made your post much shorter by asking the following two questions:

1) "Courts have the power to shift public opinion by making decisions that the public disagrees with at the time but that also create new legal norms which the public eventually comes to accept. When should courts make such decisions and when should they refrain?"

2) "Courts have the power to make public opinion binding by cementing it into a legal right. When should courts make such decisions and when should they refrain?"

But I'll answer the question you posed anyway.

People who agree with the legal arguments for gay marriage will think either that (1) the courts played an appropriate role in the evolution of our institutions or (2) fell short of their institutional and constitutional responsibilities because they took so long to issue decisions in favor of gay marriage.

People who disagree with the legal arguments for gay marriage will think that the courts exceeded their role by finding a new right to gay marriage when the people should have been left to create such a right through the legislative process. Many will lament the fact that later public acceptance of gay marriage was caused by the earlier activist decisions.

People with a strong state's rights bent will be upset that the Supreme Court invalidated the laws of 12 states that still hadn't yet voluntarily accepted gay marriage. People with a more majoritarian bent won't be upset because the Supreme Court cemented a large majority opinion.

Posted by: Stephen Aslett | Jun 18, 2008 4:02:57 PM

You've only listed four actions on SSM which involve courts at all:

1. Later this year, the Connecticut Supreme Court joins Mass and Calif... - Does CT's Constitution give interpretative power of the Constitution to the CT Courts? Or concurrently with the legislature? Or....?

2. Between 2010 and 2020, another 20 states adopt same-sex marriage...some by court decision....national pressure (a few by court decision) - Again, based on what reasoing? Who has the power to interpret the state's constitution? Are legislative decisions binding on the courts? Are there any contrary legislative interpretations?

3. After five years of posturing, conflicting lower court decisions, and false starts, the Supreme Court in 2025 holds that the Constitution prohibits states from limiting marriage to opposite-sex couples, invalidating the remaining 12 state laws. - This is overreaching the U.S. Constitution, as there is nothing in the U.S. Constitution which permits the Federal goverment to make decisions about marriage.

Posted by: Jonathan | Jun 18, 2008 3:30:47 PM

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