There’s a lot of speculation about the decision the Supreme Court may make in a few months about marriage equality. Chances are, you took at least a high school civics/government class, and have a pretty good working understanding of how the Supreme Court works. You understand that they’re interpreting the constitutionality of a law. You know that they don’t just look to the language and intent of the Constitution, but also to how the Court has interpreted the Constitution in the past. This is called stare decisis, or standing by what is decided. Feel free to pull that one out at your next bar night if you want to impress nobody and go home alone.
Although you already know all of this, you might not know exactly which former cases will come into play and why. That’s where I come in. Here are some Supreme Court cases that may affect the marriage equality debate, what they’re about, and why they matter now – in a short-ish, for dummies package. Not because you’re dummies, but because I took Con Law four years ago and I can’t even remember what I packed in my lunch this morning or where my keys are.
* Note: I may have gone to law school, passed the bar exam, and have “attorney” in my job title, but none of this is legal advice. I have an employer, and my opinions are mine, not theirs.
Griswold v. Connecticut
What it’s about: Birth control – but, in the grand tradition of Supreme Court cases, it’s about so much more than that. The story was that a Connecticut law (not often enforced) completely banned contraceptives. Some brave people opened a birth control clinic in New Haven because hey, that law was seriously not enforced anyway. Well, and also because the Court had previously held that it was totally fine to outlaw birth control, and I think they had a hunch that the times were changing. Or a-changin’, as Bob Dylan would have me believe everyone talked at the time. They got fined $100 and the case made its way up to the Supreme Court.
How they got there: This established that the right to privacy is found in “penumbras” and “emanations” of other constitutional rights. So, it’s implied, pretty much. A broad privacy right is implied in the Fourteenth Amendment (personal liberty, restrictions on state action) and Ninth Amendment (rights reserved to the people). This reasoning showed up about 8 years later in Roe v. Wade (you know that one! That’s the abortion one!). The Court declared an all-out ban on abortion illegal by reasoning that the Constitution and the cases that interpret it carry an implied right to privacy. There’s also some stuff about trimesters in there that really doesn’t have much to do with marriage. Although, now I am anticipating that we’ll get a misguided Google hit asking “what trimester should I get married in?” My vote is to wait til the baby is born because the only thing harder to find than a good maternity prom dress is a good maternity wedding gown. Cue the misguided Google hits.
Why it matters: We’ll get there, but basically cases with more direct implications for the marriage equality struggle rely, in part, on an understanding that citizens possess a right to privacy.
Loving v. Virginia
What it’s about: Interracial marriage – but really, the basic right to marry whomever you choose (I mean, as long as one of you has an XX and the other an XY chromosome. OMG remember Kyle XY? Is that on Netflix? Loved that shit. ).
How they got there: A Virginia law prohibited mixed-race couples from getting married out of state and then living as a married couple in Virginia. Sort of like how now, gay couples can go from, say, Ohio to New York to get married, but Ohio won’t recognize their marriage. But this was even worse than that, as Virginia didn’t just fail to recognize the marriage – it was a felony. Here’s the big thing: VA tried to say that since both white and black people were affected by the law (You’re a felon! You’re a felon! Everybody gets a felony!) then it wasn’t racially discriminatory. The Supreme Court thought otherwise, and said that this law violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Check out this little gem from Justice Warren: “marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as… these statutes, classifications so directly subversive of the principle of equality at the heart of the fourteenth amendment, is surely to deprive all the State’s citizens of liberty without due process of the law… Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
Why it matters: Loving declares that marriage is a fundamental right. Laws that impinge on fundamental rights are subject to a harsher level of review by the Supreme Court than other laws. Standards of review crash course ahead:
- The lower level is rational basis review – does this law have a reasonable relationship to a legitimate state interest? The anti-gay marriage folks would argue that the state has a legit interest in protecting kids from growing up in bad homes so that’s why you and your boyfriend/girlfriend can’t get married. I’m not even going to go there because we all know that’s ridiculous.
- But if a fundamental right is at risk, the stakes get higher: strict scrutiny. Strict scrutiny asks whether the law was narrowly tailored to a compelling state interest. Loving matters because it seemingly gets us to the strict scrutiny level when the right to marry is in question. It’s harder for a law to meet “narrowly tailored” and “compelling state interest” than it is to meet “reasonably related” and “legitimate interest,” so if you support marriage equality, you’d really like to see strict scrutiny applied.
- What happens if the Supreme Court says that there isn’t a fundamental right at stake here? There’s also a strict scrutiny review if a law targets a suspect classification. No dice: courts have tried like crazy to get around declaring sexual orientation a suspect classification, even though suspect classes usually include things you’re born with (race) and even some things you’re not (religion).
- But even if we can’t get there, there is a level called intermediate scrutiny. If a law unfairly targets a quasi-suspect class, then we ask whether the law is substantially related to an important government interest. So, it’s harder for a law to meet intermediate scrutiny than it is to meet rational basis, but easier than strict scrutiny. The Supreme Court has not yet said that sexual orientation is subject to intermediate scrutiny, but the Second Circuit Court Of Appeals has, so who knows? But anyway, even if sexual orientation isn’t a suspect class, gender is. Loving says that a law that limits what race you can marry is racial discrimination. If anti-gay marriage statutes limit what sex you can marry, then maybe, just maybe, it is sex-based discrimination and gets intermediate review.
The Supreme Court is usually loathe to declare new members of the suspect and quasi-suspect classes, though. We may be more likely to see them say that laws against gay marriage don’t even meet the rational basis test, then stop there.
Lawrence v. Texas
What it’s about: Texas had an anti-sodomy statute, as did twelve other states, as recently as ten years ago when Lawrence was decided. Over 25% of the states in this country cared a whole lot about what you did in your grown-up time. Police walked in on two gents going at it, which usually would be the worst thing EVER anyway, right? But it gets a lot worse when instead of a bit of embarrassment, you get a misdemeanor. And the Supreme Court was like, nah, Texas, you can’t do that.
How they got there: Kennedy’s opinion rested on the right to privacy (Griswold! Roe! Thanks, ladies!). Lawrence struck down Bowers, a case that said that it’s okay to make laws against sexual conduct between consenting adults because condemning homosexuality is “firmly rooted in Judeo-Christian moral and ethical standards.” Basically, it’s fine to discriminate against gay people, because it’s our tradition! Like apple pie on the Fourth of July! Or, for those of us who aren’t that into pie, like those cakes with strawberries and blueberries that look like the American flag on the Fourth of July! Because that cake is GOOD. After Lawrence, limiting what adults do behind bedroom doors is understood to be a violation of the Due Process Clause of the Fourteenth Amendment.
Why it matters: Note that they didn’t go with the equal protection analysis and invoke a suspect or quasi-suspect class. Just the legitimate basis test, which these laws failed gloriously. There’s no legit state interest in who you get busy with and when and how.
So what do I think is going to happen when the Supreme Court term is up this summer? Well, I didn’t discuss the DOMA challenge here, but I’m hoping that’s a goner. But as for the right to marry in California, my guess is that we’re probably going to get a narrow decision that doesn’t help many people outside of CA. I think the lower court’s holding will get reversed, but only on the grounds that the people who brought the challenge to same-sex marriage didn’t have standing. It just didn’t affect them, pretty much. I think we might have to wait for a case from someone with standing – a person who wants to get married and can’t. Or at least a state defending its law instead of an interest group from the state doing it. But I’m not putting any money on it or anything, because the Supreme Court can surprise you sometimes. And also because legally I don’t think I can put money on it.
Update: 6/26/13: Well, SCOTUS sure did keep us waiting til the end of the term, didn’t they? For anyone who follows these crazy kids, it’s no surprise (now can they PLEASE just let my girl Ginsberg retire?). Also, this is the 10-year anniversary of Lawrence v. Texas, which might make you a little emotional if major Supreme Court decisions make you happy-cry like they do for me.
As I predicted, SCOTUS held that the petitioners in Hollingsworth v. Perry, the prop 8 challenge, did not have standing to appeal the district court’s ruling to the 9th Circuit. Here’s why :”we have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.”
But do you know what that means? Since they didn’t have standing to appeal the initial ruling on Prop 8, the district court’s decision stands. Which means…. Prop 8 is struck down! We revert back to the district court’s order, which was lovely. Here, a little light reading for you, Perry v. Schwarzenegger (actually one of the better opinions I’ve read lately): https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf
This isn’t as useful to the rest of America as an outright ruling on marriage equality would be. It’s state-specific. But, it’s a victory for California!
100 years ago, when suffragettes were doing their thing, there was a debate about whether to achieve equal voting rights state-by-state or by Constitutional amendment. The state-by-state thing was slow-going, and we all know how that ended up getting resolved. But for the time being, anyway, that’s what we’ll have to do with marriage.