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Penn Law faculty respond to the Supreme Court debate over same-sex marriage

April 01, 2013

Forceful arguments over same-sex marriage played out in the U.S. Supreme Court last week, as the justices heard oral arguments in two cases involving California’s Proposition 8 and the federal Defense of Marriage Act. Throughout the country, the highly anticipated cases elicited intense interest and extensive commentary. What follows are responses to the Supreme Court debate by Penn Law faculty members who specialize in constitutional law.

Amid echoes of the past, a new chapter begins in the same-sex marriage debate.

Nils Bohr is regularly quoted as observing that “it is exceedingly difficult to make predictions – especially about the future.” With equal regularity, I have guessed wrong about the outcome of high profile cases in the Supreme Court. Nonetheless, on the basis of the oral arguments last week, I’ll venture the following three predictions:

First, a majority of the Court will not endorse either the Defense of Marriage Act (DOMA) or Proposition 8. By my count four justices came out in favor of equal rights in oral argument. The closest any justice came to enthusiasm for denying marriage equality was Justice Scalia’s sally into sociological speculation with regard to the adoption of children by same sex couples.

Justice Scalia suggested in oral argument that Proposition 8 could be supported on the ground that “States… believe it is harmful – and I take no position on whether it’s harmful or not, but it is certainly true that – that there’s no scientific answer to that question at this point in time.”  This analysis is unlikely to sustain Proposition 8, since the state at issue in the case – California – in fact permits and encourages adoption, and the record in the case that is before the Court actually establishes that Proposition 8 is harmful to children.

Justice Kennedy observed, “We have five years of information to weigh against 2,000 years of history or more. On the other hand …there are some 40,000 children in California… that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”  Whether or not Justice Scalia thinks the voice of those children is important, the voice of Justice Kennedy certainly is, and he seems unlikely to raise it in support of either DOMA or Proposition 8.

Second, a majority of the Court appears inclined to avoid issuing an opinion that ties the hands of states that are not involved in the current cases. A decision invalidating Section 3 of DOMA would not interfere with state autonomy and would allow what Justice Sotomayor referred to as the “percolation” of the issue of marriage equality through state political and legal processes.  I’d be reluctant to bet on DOMA surviving past June.  On the other hand, it seems unlikely that a majority of the Justices will coalesce behind an opinion that strikes down bans on same sex marriage nation-wide. Windsor and Perry will not mark the end of litigation on the issue of marriage equality, but the beginning of a new chapter.

Third, in a decade at most, we will look back at the limits on same sex marriage the way we do now at bans on miscegenation. In preparing this response, I read the 1967 oral argument of R. D. McIlwaine III representing Virginia in Loving v. Virginia.  The learned Mr. McIlwaine made two points defending Virginia’s law against interracial marriage. First, he argued that the drafters of the Fourteenth Amendment had no intent to upset the well-established bans on interracial marriage that typified their time. Second, he maintained, interracial marriages might endanger children. Mr. McIlwaine warned that “there has not been sufficient scientific investigation of this matter for a physiologist to… determine the true effects interracial marriage.” He adduced “evidence on the psycho-sociological aspect of this question that intermarried families are subjected to much greater pressures and problems than those of the intramarried and that the state’s prohibition of interracial marriage for this reason stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage.”

Mr. McIlwaine lost resoundingly in the Supreme Court, and in the court of history. I’m not entirely sure how the Supreme Court will treat the echoes of his arguments in the cases before it. But I have faith in the evolving conscience of our country.

-          Seth F. Kreimer, Kenneth W. Gemmill Professor of Law


Why attitudes toward same-sex marriage have changed.

After two days of oral arguments on same-sex marriage, it looks unlikely that the Supreme Court will deliver the resounding victory gay rights advocates hoped for. The justices seemed notably uncomfortable with the idea of announcing a right to same-sex marriage, whether in 50 states or in California alone.

The federal Defense of Marriage Act, which runs counter to states’ rights as well as gay rights, may well go down, but the Court is not about to embrace full equality for gays and lesbians.

In contrast to the Court’s evident timidity, society has moved with a speed that has surprised most observers. Recent polls show national majorities in favor of gay marriage. Nine states have accepted it since 2009, and six others have adopted civil unions. In retrospect, however, the rapid pace of social change should have been obvious. There is a reason that discrimination on the basis of sexual orientation falls very fast once it starts to go.

Discrimination requires viewing the disfavored group as different, and typically as strange, threatening, or inferior. Such attitudes often do not survive close personal interactions, when the disturbing Others turn out to be more like us than we thought. Thus, discrimination often requires separation to persist. Racial discrimination relied initially on legally-enforced segregation and bans on interracial marriage. It lingers in part because of segregated patterns of residence and schooling.

But sexual orientation resists this separation. Once the pressure of societal disapproval is no longer enough to drive them to hide their orientation, gays and lesbians cannot be segregated away. Even the most ardent foe of same-sex marriage is as likely as anyone else to discover that his or her child is gay. When they do, most, like Dick Cheney and Rob Portman, find that their views on marriage equality change.

This in part a selfish reaction, a reflection of the fact that issues can seem unimportant until they affect those close to us. But it also expresses a growth of empathy, a realization that gays are not necessarily so different, that they may be worthy of love and respect after all.

People disagree about whether the African-American civil rights struggle is an appropriate model for the gay equality movement. There are certainly some similarities, but gays and lesbians are unlike racial minorities in this important sense: they are inevitably integrated among the foes of equality. From that perspective, gays and lesbians are more like women, who are integrated into the family unit and cannot be separated.

Because of that integration, sex discrimination notably did not feature the hostile and derogatory attitudes that race discrimination did. How could it, when its targets were men’s wives, mothers, sisters, and daughters? Instead, it took the form of romantic paternalism, denying women opportunities less because they weren’t good enough than because they were too good: too pure, too delicate, too important in the roles of wife and mother. It persists because the differences it projects onto women are compatible with a belief that they are worthy of love and respect.

Sexual orientation discrimination is like race discrimination in terms of the differences it attributes to gays and lesbians, but like sex discrimination in terms of the integration of its targets into broader society.  That configuration is not stable; hostile attitudes do not survive close personal interaction, much less integration within the family. The combination of derogatory discrimination and societal integration explains the speed with which sexual orientation discrimination has faded in recent history, and it also predicts the future. The trend of acceptance is not going to reverse; it will only accelerate. The issue of equality has been decided, and gay marriage is coming no matter what the Justices say. The main thing at stake in these cases is the Court’s reputation.

-          Kermit Roosevelt, Professor of Law