Marriage Equality Without Equivocation

Unless the Supreme Court firmly declares that gay couples deserve equal protection, it risks encouraging state-level obstruction.

Library of Congress

On September 11, 1958, Richard Butler of Little Rock, Arkansas, told a special session of the U.S. Supreme Court that his client—the Little Rock School Board—found itself “in a conflict of two sovereignties—the State and Federal Governments.” On the one hand, a federal court had ordered the Board to desegregate Central High School that fall by admitting nine African American students. On the other, the state legislature, in emergency meeting, had passed legislation proclaiming the Court’s 1954 decision in Brown v. Board of Education “unconstitutional” and forbidding any desegregation of schools. The state’s governor, Orval E. Faubus, claimed that he was not bound by Brown. He had sent the National Guard into Little Rock the block the nine students from enrolling.

The Board was now asking the Court for a delay of a few years before beginning desegregation, if at all.

Chief Justice Earl Warren interrupted Butler’s argument to point out that the issue wasn’t the School Board; it was the state of Arkansas. The school board was a state agency; wasn’t the issue “whether it’s the militia, whatever agency of the State Government, if it did frustrate the rights of these children, it’s a violation of the Constitution?” The fact that the suit was against the school board was a formality; it did not mean other parts of the state government could ignore the Court.

Later that day, Thurgood Marshall, arguing for the NAACP Legal Defense fund, told the Court, “I take the flat position that this ‘battle between the sovereigns’ was decided by the Constitution when it was adopted. That was settled some years ago.”

The Little Rock dispute brought federal troops to Central High. It led to the landmark opinion in Cooper v. Aaron, the only one in history signed by all nine Justices, which proclaimed that “the federal judiciary is supreme in the exposition of the law of the Constitution,” and that Brown “is the supreme law of the land.” All state officials, the Court noted, take an oath to support the federal Constitution. “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”

The phantom “battle of the sovereigns,” however, lives on in the backwoods of the American mind; it emerges when passions run high, reason sleeps, and Americans who know better allow themselves to contemplate resistance to legal change.

Alas, we may be living through such a time. As The New York Times notes, state legislatures in the Bible Belt are openly flirting with laws designed to thwart any Supreme Court decision requiring recognition of gay marriage. Some local officials are demanding to be allowed to discriminate against same-sex couples on personal religious grounds. Publicity hounds like Mike Huckabee and Alabama Chief Justice Roy Moore have begun dragging out moth-eaten “massive resistance” arguments that the Supreme Court’s decisions are not binding on dissenting states. And perhaps worst of all, private lawyers advising state government agencies in both Florida and Alabama have floated the Faubus notion. If a federal trial court sets aside a state same-sex marriage ban, they have “advised,” that decision isn’t “law”: It binds only the parties to the case. State officials—county clerks or probate judges—are free to ignore it.

The answer to this argument is the same today as it was in 1958. It was well summarized by Judge Robert Hinkle after Florida’s county clerks were advised by a private law firm that they could refuse to issue marriage licenses to same-sex couples, even after the Supreme Court had refused to stay Hinkle’s order striking down the marriage ban. His individual injunction binds only the named parties, to be sure, the judge wrote. But the Constitution binds every clerk, and “the Constitution requires the Clerk to issue such licenses.”

The judge put recalcitrant clerks on notice that if they refused to do so, the couples involved could join his lawsuit and, if victorious in higher courts, recover attorney fees from the state (and perhaps from the clerks themselves).

In other words, no sovereignty shucking or jurisdictional jiving will, in the long run, prevail. If the Supreme Court, as seems likely, finds that same-sex couples have an equal right to marry, those who stand in the courthouse doors will certainly lose, and possibly pay.

Huckabee and Moore, like Faubus, will take their place as laughingstocks of history. But that is not to say that they can do no damage; many of history’s villains masked malign intent with a touch of the clown. Faubus’ intractability led to riots in the streets of Little Rock; to beatings of reporters by a mob; to threats and trauma that would remain vivid for the nine black students for the rest of their lives. And if the high court strikes down same-sex marriage bans, clerks or legislators who invoke pretended power to ignore that decision will spread lasting damage and pain far more widely than they know. Official discrimination and hatred scar their victims, however bravely they press on to eventual victory.

History also offers a lesson for the justices as they contemplate the same-sex marriage cases now grouped under the name Obergefell v. Hodges. We remember the desegregation era as a proud time for the Court, but the Justices made a few consequential errors at the time. Chief Justice Warren was convinced that the Court’s decisions must be unanimous if the nation was to accept desegregation; that quest for unanimity led to opaque writing—and to a decision in Brown II refusing to set a timetable for compliance. The result was delay, and a sense among Southern leaders that the Court might be stalled and eventually thwarted altogether. Moderates (and Orval Faubus was originally among them) at first pledged compliance, but as time passed without federal enforcement, they were pushed into resistance by extremists like James J. Kilpatrick and the Citizens’ Councils. A more certain trumpet might have avoided Little Rock, and blood in the streets elsewhere.

When the Court decides Obergefell at the end of June, the most unity that can be expected is a vote of 5-4. If the five hold for marriage equality, we pretty much know that the opinion will be written by Justice Anthony Kennedy. But here’s what we don’t know: If same-sex couples have a right to marry, where exactly does that right come from? Is it a fundamental “due process” right to marriage, open to all kinds of couples, or is it an “equal protection” right of gays and lesbians, because of the history of discrimination against them?  The result in this case would be the same either way—but the implications down the road might be important. If marriage equality is simply about marriage, then the new rule is limited to marriage: Many other battles over sexual equality—adoption, parenthood, health care, employment, housing, public accommodations—will remain to be fought on a near-blank slate, and progress may be slow.

The Court, however, could confront the nation’s long history of homophobic law and persecution; it could hold that sexual orientation, like race, religion, sex, and a few other categories, requires the equal protection of “heightened scrutiny”—in effect, that all discrimination against gays is presumptively unconstitutional. That was the basis of the Second Circuit’s opinion in Windsor. No matter how we parse history, Judge Dennis Jacobs wrote, gays and lesbians have been discriminated against for nearly a century: “Ninety years of discrimination is entirely sufficient to document a ‘history of discrimination.’”

Justice Kennedy’s three gay-rights opinions have been ground-breaking, but also opaque. He has consistently refused even to discuss whether sexual-orientation is more like race or red hair. Instead, he has insisted that each challenged provision was invalid no matter what level of “scrutiny” applies.

The rumblings from the South give the Court notice that equivocation may encourage resistance. Now might be the time, with four other Justices at his back, for Kennedy to say forthrightly that when any agents of the state—legislators, judges, clerks—discriminate on this basis, they violate both the Constitution and their oath.

This time, we can but hope that the trumpet the Court sounds will not be uncertain.