Gay Marriage Gets Its Day in Court

The question is less whether the Supreme Court will affirm the right to same-sex unions than how it will choose to do so.

As the oral argument in the same-sex marriage cases nears, the smart money remains on a 5-4 decision upholding the right of individuals to be married in their own states and to have those marriages recognized by other states.

In fact, under the surface, a lot of the briefing seems to be less about whether the Court will affirm marriage equality and more about how. If history is a guide, the Court will speak in oblique, even oracular terms. A strong, clear opinion would serve the nation better.

Whatever the Court decides, religious and social conservatives plainly still hope to blunt the gay-rights movement. The Alabama Supreme Court has already ordered same-sex marriages halted, despite a federal court decision that the state’s ban is unconstitutional. A committee of the Texas House of Representatives recently approved a ban on state funds being used to perform same-sex marriages, court order or no. Legislatures in Texas, Alabama and Michigan considering “conscience clause” bills that would allow state-funded adoption and foster-care agencies to refuse same-sex couples who seek to adopt or foster.

And then there’s Louisiana.

Indiana and Arkansas may have backed down on their bills, but the Louisiana legislature has before it the “Marriage and Conscience Act,” which is explicitly, sweepingly designed to exclude and stigmatize same-sex couples. Under the Act, employers could still deny same-sex spouses marriage benefits; licensed professionals could refuse services to same-sex couples; state contractors could refuse to hire gays and lesbians; and even state officials—such as judges—could refuse official recognition to same-sex marriages.

Even lawmakers in Arkansas might have laughed at this bill, but Louisiana Governor Bobby Jindal is made of sterner stuff. Not even the prospect of disaster for Louisiana’s $5.2 billion tourist industry will deter him: “As the fight for religious liberty moves to Louisiana, I have a clear message for any corporation that contemplates bullying our state: Save your breath,” Jindal wrote in Thursday’s New York Times.

So whatever happens with the Court in June, the struggle for gay and lesbian rights—even for basic humanity—will go on. A good Supreme Court opinion could make it less divisive.

In constitutional law, the reasons for a decision matter as much as the decision itself. If the Court decides states must perform and recognize same-sex marriages, the next question has to be why. The Court could hold that competent adults have a “substantive due process” right to be married. The Court has repeatedly held marriage to be a “fundamental right” that the state may not deny or limit without a “compelling” interest. Same-sex marriage bans would fall—because in essence they discriminate against marriage, not because they discriminate against gays and lesbians.

Or the Court could decide that same-sex marriage bans violate the Fourteenth Amendment’s Equal Protection Clause. Equal protection law operates by determining “classifications.” For example, Southern segregation “classified” on the basis of race—white people got certain rights and benefits that non-whites did not. Until 1996, the Virginia Military Institute “classified” by sex: men could be admitted, women could not. Same-sex marriage bans, thus, certainly “classify” by sexual orientation.

But finding the “classification” is just the beginning. Equal protection law then proceeds by applying a “standard of scrutiny.” Certain classifications, like race, are examined “strictly”—that is, with an assumption that they are unconstitutional unless the state gives a very good explanation. Others, like sex, are given “intermediate” scrutiny—courts recognize that there are a few good reasons to discriminate in these areas (e.g., certain physical characteristics), but not many. All other classifications are tested for a “rational basis,” lawyer-speak for “whatever, dude.” Consider this rule: “Tall people must stand in the back.” Why? The picture will look better. Whatever. Tall people don’t get “heightened scrutiny.”

What about sexual orientation? Is it more like race, or more like being tall? If classifications by sexual orientation demand “strict scrutiny,” a law like Louisiana’s will be pretty much dead on arrival. If, however, discrimination against LGBT people is more like discriminating against the tall, then every state discrimination—whether in adoption, foster-care placement, child custody, health care, employee benefits, and so on, will have to be litigated to determine whether there’s a whatever strong enough to allow it. It will be tedious; it will be demeaning; and (perhaps worse from the justices’ point of view) it will require the Supreme Court to resolve the issue over and over.

Since its 1996 decision in Romer v. Evans, the Court has struck down sexual-orientation discriminations; but the majority, speaking through Justice Anthony Kennedy, has resolutely refused to give any guidance about the “standard of review.” If same-sex marriage prevails this spring, there are good odds both that Kennedy will write this opinion as well and that it will leave us no clearer on a standard.

Lawyers for both the couples and the federal government have asked the Court to tackle the “standard of review” issue. Their argument is that LGBT people have, for at least the past century, suffered persecution and discrimination as fierce and hurtful in many ways as that suffered by racial minorities and women—whose equal protection claims are judged with “heightened scrutiny.” In its amicus brief, the United States reviews the history of discrimination against gays and lesbians—a century or more in which they were jailed for having sex, barred from immigrating the United States, blacklisted from public employment, stripped of child custody, and subject to sterilization and castration at judicial whim. A brief filed by the Organization of American Historians sums it up this way: “the historical record is clear. Gay men and lesbians have been subjected to generations of widespread discrimination and demonization, commencing as soon as they emerged as a group into American public consciousness and continuing today.”

There is a counter-argument, of course: many briefs supporting the marriage bans insist that the marriage-equality movement is now so powerful that sexual orientation deserves no special judicial concern. In its brief, the state of Ohio argues that “the ability of gays and lesbians to participate in the political process has only increased” in recent years. Support for same-sex marriage is growing rapidly, the state argues, and official discrimination is lessening. Left alone, the people will quickly approve same-sex marriage on their own. “If anything it is litigation that has stalled democracy,” the brief says.

Some of the conservative amici portray the gay movement as a merciless, all-conquering force. Concerned Women for America notes that powerful corporations and religious groups have endorsed marriage equality: “Both news and entertainment media also support homosexual and lesbian causes.” The brief concludes by noting that “Newsweek proclaimed that President Obama is America’s ‘First Gay President.’”

The idea of gays and lesbians as powerful and menacing has resonated with some of the justices from time to time. During argument in United States v. Windsor, Chief Justice John Roberts ridiculed the idea that gays and lesbians are powerless: “Political figures are falling over themselves to endorse your side of the case.” Both Justices Clarence Thomas and Samuel Alito have written that supporters of anti-gay referenda are now living in fear of gay retaliation; and the Court’s five conservatives barred closed-circuit TV transmission of the Proposition 8 trial because anti-same-sex marriage witnesses might otherwise be intimidated into silence.

It’s possible to look at the events of the past year and see a movement that, aided by corporations, the entertainment industry, and the National Football League, now calls a gay tune to which the states must dance. But a few years of mixed results cannot wipe out a century of hostility and exclusion. And it hardly helps the case that some of those forecasting untroubled success for the gay-right movement are the same people digging in their heels to retard and even reverse it.

The Court can subvert its own handiwork when it mumbles. Brown v. Board of Education sparked a decade of resistance because the justices subjected the pace and scope of Southern obedience to the mealy-mouthed standard of “all deliberate speed.”

The Commonwealth of Virginia, my native state, was the hatchery and home of “Massive Resistance” to desegregation, a tactic that allowed a cabal of powerful white men to strip a generation of black schoolchildren of their right to a desegregated education.

As recently as 2013, when the Court decided Windsor v. United States, Virginia’s Attorney General was Kenneth Cuccinelli and its legal policy was militant homophobia. Virginia’s new Attorney General, Mark Herring, has now filed an amicus brief in the marriage cases. The brief asks the Court, this time, not to sound an uncertain trumpet:

A decisive ruling will also quell grumblings, already audible in some quarters, that State and local officials might invoke States’ rights to withhold marriage equality, even if this Court rules that the Fourteenth Amendment demands otherwise. Cases like Cooper v. Aaron show that decisive rulings help States overcome such urgings. And history teaches that adherence to the commands of the Constitution is indispensable to the protection of liberty for us all.