History Won't Be Kind to the Supreme Court on Same-Sex Marriage

During two days of oral argument over Proposition 8 and DOMA, there was almost no substantive discussion of anti-gay prejudice.

Jonathan Ernst/Reuters

Fifty years from now, when same-sex marriage is recognized in every American jurisdiction, our relatively enlightened descendants will cull through the transcripts and audio feeds of this week's oral arguments at the United States Supreme Court in Perry and Windsor and shake their heads in wonder and dismay. Look at how little time the learned justices spent exploring the intent and effect of the discriminatory laws, our grandchildren will say, and look at how much time they spent instead searching among the weeds for ways to avoid a definitive ruling about the constitutional rights of millions of people.

Tuesday's argument in the Proposition 8 case out of California was void of any reference to, let alone meaningful discussion of, the virulently anti-gay sentiment that helped ensure passage of the 2008 ballot measure banning same-sex marriages in the state -- both marriages already in place and marriages to come. And Wednesday's argument over the federal Defense of Marriage Act only touched on this discrimination in passing, as if the justices were concerned that America would somehow be offended it it were reminded of the bigotry and prejudice that accompanied passage of the measure in 1996.

The rulings in these two big civil rights cases won't be announced until late June -- and both cases could go either way -- but I think history will judge the Supreme Court, and by extension the rest of us, by what was not argued this week. The Court did not confront and condemn the discrimination at the core of these laws. It did not signal a willingness by the judiciary to stand up to the tyranny of the majority. And it did not even minimally force the laws' defenders to justify with facts their disparate treatment of same-sex couples. It was instead a court openly looking for a way out, which, in the end, makes you wonder what kind of court it is at all.

The Defense of Marriage Act

For the sake of our grandchildren, if not for ourselves, let us briefly remind each other of the truth of the matter here -- and let us do so courtesy of U.S. District Judge Joseph L. Tauro, the venerated Nixon appointee who first struck down Section 3 of DOMA back in 2010. Judge Tauro wasn't afraid of offending anyone, or of pretending that this federal law was the result of anything less than unrestrained fear and paranoia about gay marriage. In his opinion, which was largely upheld by the 1st U.S. Circuit Court of Appeals, but which was not accepted for review by the Supreme Court, Judge Tauro wrote:

The House Report acknowledged that federalism constrained Congress' power, and that "[t]he determination of who may marry in the United States is uniquely a function of state law." Nonetheless, it asserted that Congress was not "supportive of (or even indifferent to) the notion of same-sex 'marriage,'" and, therefore, embraced DOMA as a step toward furthering Congress's interests in "defend[ing] the institution of traditional heterosexual marriage."

The House Report further justified the enactment of DOMA as a means to "encourag[e] responsible procreation and child-rearing," conserve scarce resources, and reflect Congress "moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality." In one unambiguous expression of these objectives, Representative Henry Hyde, then-Chairman of the House Judiciary Committee, stated that "[m]ost people do not approve of homosexual conduct ... and they express their disapprobation through the law."

In the floor debate, members of Congress repeatedly voiced their disapproval of homosexuality, calling it "immoral," "depraved," "unnatural," "based on perversion" and "an attack upon God's principles." They argued that marriage by gays and lesbians would "demean" and "trivialize" heterosexual marriage and might indeed be "the final blow to the American family."

Although DOMA drastically amended the eligibility criteria for a vast number of different federal benefits, rights, and privileges that depend upon marital status, the relevant committees did not engage in a meaningful examination of the scope or effect of the law. For example, Congress did not hear testimony from agency heads regarding how DOMA would affect federal programs.

Nor was there testimony from historians, economists, or specialists in family or child welfare. Instead, the House Report simply observed that the terms "marriage" and "spouse" appeared hundreds of times in various federal laws and regulations, and that those terms were defined, prior to DOMA, only by reference to each state's marital status determinations. (citations omitted by me).

On Wednesday, Justice Elena Kagan was the first to mention this grim history. Paul Clement, the conservative lawyer arguing to save the federal law on behalf of House Republicans, was pretending aloud that Congress had noble goals in 1996 when it passed DOMA. He told the Court:

When you look at Congress doing something that is unusual, that deviates from the way they-- they have proceeded in the past, you have to ask, Well, was there a good reason? And in a sense, you have to understand that, in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the states and its historic practice of preferring uniformity.

At which point Justice Kagan had heard enough. "Well," she interjected, "is what happened in 1996 -- and I'm going to quote from the House Report here -- is that 'Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.' Is that what happened in 1996?" To which Clement replied:

Does the House Report say that? Of course the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach. ... This Court, even when it's to find more heightened scrutiny, the O'Brien case we cite, it suggests, Look, we are not going to strike down a statute just because a couple of legislators may have improper motive. [emphasis added by me]

Leaving aside the dubious propriety of a constitutional standard that ignores or downplays the motives of lawmakers in enacting laws, Clement's stated position -- that only "a couple of legislators" in Congress expressed prejudice in enacting DOMA -- is contrary to the record of the case. Diminishing the scope of discriminatory intent of the law is also a direct insult to the millions of people discriminated against by it. But Justice Kagan let the matter rest. The argument moved on.

Minutes later, however, it was Solicitor General Donald Verrilli who raised the issue again. To the justices, he said:

It was enacted to exclude same-sex married, lawfully-married couples from Federal benefit regimes based on a conclusion that was driven by moral disapproval. It is quite clear in black and white in the pages of the House report which we cite on page 38 of our brief.

At which point, it was Chief Justice John Roberts' turn to cut in. He said: "So that was the view of the 84 senators who voted in favor of it and the president who signed it? They were motivated by animus?"

Whereas Clement sought to diminish the scope of DOMA's discriminatory intent by making light of it, the Chief Justice sought to diminish it by exaggerating its impact. Of course all 84 senators who voted for DOMA didn't do so because they were bigots. But how many votes from anti-gay bigots would it take for the Court to strike down a law? 10? 30? 50?

Neither the Chief Justice nor any of the the lawyers were willing to say, "I think it was based on a misunderstanding," diplomatically offered Roberta Kaplan, lawyer for the aggrieved Edith Windsor. It's bad form to accuse federal lawmakers of bad intent. Evidently it's better form to presume, even in the face of direct evidence to the contrary, that the passage of this federal law was the product of clear vision and common sense.

This is what our grandchildren are going to mock us for: for our refusal to admit what we know to be true about this law, and for the reason it was enacted, and for our hesitancy, in 2013, to confront it with the scorn it deserves.

Proposition 8

Now let's briefly, for the sake of posterity, also look at how Proposition 8 came about in California, and the reasons given at that time to support its passage. Remember that, in 2008, before Proposition 8 was passed, it was lawful for same-sex couples to get married in California, and that thousands of them were gleefully doing so.

Here's how U.S. District Judge Vaughn Walker, an appointee of George H.W. Bush, described in his August 2010 ruling some of the animus that surrounded the passage of the measure. First, his introduction:

Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

Judge Walker continued, summarizing some of the evidence introduced at his trial:

Historian George Chauncey testified about a direct relationship between the Proposition 8 campaign and initiative campaigns from the 1970s targeting gays and lesbians; like earlier campaigns, the Proposition 8 campaign emphasized the importance of protecting children and relied on stereotypical images of gays and lesbians, despite the lack of any evidence showing that gays and lesbians pose a danger to children. Chauncey concluded that the Proposition 8 campaign did not need to explain what children were to be protected from; the advertisements relied on a cultural understanding that gays and lesbians are dangerous to children.

This understanding, Chauncey observed, is an artifact of the discrimination gays and lesbians faced in the United States in the twentieth century. Chauncey testified that because homosexual conduct was criminalized, gays and lesbians were seen as criminals; the stereotype of gay people as criminals therefore became pervasive. Chauncey noted that stereotypes of gays and lesbians as predators or child molesters were reinforced in the mid-twentieth century and remain part of current public discourse...

Political scientist Gary Segura provided many examples of ways in which private discrimination against gays and lesbians is manifested in laws and policies. Segura testified that negative stereotypes about gays and lesbians inhibit political compromise with other groups: "It's very difficult to engage in the give-and take of the legislative process when I think you are an inherently bad person. That's just not the basis for compromise and negotiation in the political process." ...

Proponent Hak-Shing William Tam testified about his role in the Proposition 8 campaign. Tam spent substantial time, effort and resources campaigning for Proposition 8. As of July 2007, Tam was working with Protect Marriage to put Proposition 8 on the November 2008 ballot. Tam testified that he is the secretary of the America Return to God Prayer Movement, which operates the website "1man1woman.net." 1man1woman.net encouraged voters to support Proposition 8 on grounds that homosexuals are twelve times more likely to molest children, and because Proposition 8 will cause states one-by-one to fall into Satan's hands.

And so on. On Tuesday, this dark history was entirely absent from the discussion in court. Charles Cooper, the attorney who has defended Proposition 8 for years, and whose inability to support the measure with credible evidence prompted Judge Walker to practically beg him to do better, tried to whitewash the discrimination in his own way. Cooper told the Court:

But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there's no way that she or anyone else could possibly know what the long-term implications of -- of profound redefinition of a bedrock social institution would be.

That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.

Not a single justice called out Cooper for this revisionist, sanitized view of the motives behind the push for passage of Proposition 8. Not one. Only the Solicitor General reminded the Court, later in the argument, that California did not "push a pause button. They pushed a delete button. This is a permanent ban. It's in the Constitution. It's supposed to take this issue out from the legislative process."

The justices didn't want to talk about why the state's gay marriage ban came to be -- only about how deferential they had to be to avoid offending the judgments of the very people who fought so hard to deprive their fellow citizens of the right to marry.

The Court's defenders will correctly note that there are valid reasons for the justices' lack of interest in publicly scouring the record to identify the motives behind Proposition 8 and DOMA. As a general rule, such motives are not supposed to be dispositive under the legal standards the Court has nurtured over the centuries.

And perhaps the justices didn't want to allow either argument to turn ugly. But that's just the point. The justices can dress up these measures as conflicts of federalism, or jurisdiction, or judicial deference -- but, at their core, these measures are vestiges of ugly sentiments that have no place in a rule of law.


In a country where tens of millions of citizens are happily divorced, sometimes many times over, and where millions more every year disrespect or disparage marriage by being unfaithful to their spouses, the sanctimony of the arguments this week about the "sanctity" of traditional marriage, and of the government's role in preserving it, were profoundly cynical. So were the post-hoc rationalizations that Proposition 8 and the federal law were merely well-meant "pause" buttons to allow us to acclimate ourselves to same-sex marriage. This isn't ancient history, folks. Most of us are young enough, and old enough, to remember what happened in 1996 -- and also to know what lies ahead.

Those who are willing to open their eyes can see the future. It seems destined to make this week's arguments look worse and worse as the years go by. Just as we'd like to think we are not as overtly prejudiced as our ancestors, our descendants seem destined to be less overtly prejudiced than we are. In a Pew Research poll released this month, 70 percent of the respondents born after 1981 said they favor same-sex marriage -- only 31 percent of respondents born from 1928-1945 said so. Every day in this country, with every birth and every death, support for same-sex marriage grows.

Chief Justice Roberts attributed this "sea change" -- nine states now recognize same-sex marriage -- not to our society's natural evolution toward empathy and compassion, not to our growing unease about judging our neighbors, not to the libertarian ideal that all consenting adults should be free to enjoy the benefits of civil rights, but to the "politically powerful" lobby and to "the political force and effectiveness of people representing, supporting your side of the case."

It was just another sign this week that there are many justices on the current Court unwilling to see what's in front of them, and unable to accept what it really means.