Editor’s Note: Kermit Roosevelt, Professor of Law, is a constitutional expert whose books include The Myth of Judicial Activism: Making Sense of Supreme Court Decisions. This post is part of a series by Penn Law faculty on the major decisions being issued this week by the U.S. Supreme Court.
The arc of the moral universe is long, said Martin Luther King, but it bends toward justice. Supreme Court equality decisions are similar. In its application of the Equal Protection Clause, the Court tends to move gradually towards recognizing the moral consensus of the American people. In response to the success of social movements for equality, first on the part of racial minorities, then women, and now same-sex couples, the Court reached out tentatively at first, but later with increasing assurance, to strike down discrimination that society had recognized as unjustified.
Today’s decisions fit that pattern. By striking down the federal Defense of Marriage Act, the Court took a small step. It did not impose same-sex marriage on anyone; no couple that could not legally marry yesterday can do so today as a result of that decision. It merely required the federal government to recognize marriages valid under state law.
But its reasoning, especially its dismissal of the justifications for the federal law, seems easy to apply to state laws in a future case. Chief Justice Roberts devoted his dissent to the argument that this was not so, but Justice Scalia, also dissenting, showed how easily the majority’s language could be adapted to the state-law case. And on this point, Scalia is clearly right. In 2003, in Lawrence v. Texas, the Court struck down a Texas law that criminalized same-sex sexual activity. The decision had nothing to do with marriage, the majority claimed. Don’t believe them, Scalia warned; the reasoning cannot be so limited. And today Justice Kennedy’s majority opinion about marriage relied on Lawrence. We know where this road leads.
We do not know how long the road will be. In the second decision, Hollingsworth v. Perry, the Supreme Court ruled that the defenders of Proposition 8 lacked standing. This was the most modest and incremental decision it could have rendered without going against the cause of same-sex marriage. The consequence is to leave intact the district court order enjoining the enforcement of Proposition 8. There are some interesting questions about the scope of that order, but in practical terms it is almost certain that same-sex marriage will now return to California.
That outcome seemed quite likely after oral argument in Perry. If there is a surprise, it is in the lineup. There is no logical connection between a Justice’s views on the merits and his or her views on jurisdictional issues like standing. But in practice, the more likely a Justice is to be in the minority on the merits, the more likely that Justice is to believe that jurisdiction is lacking. (In the DOMA case, for example, three of the four dissenters argued that the Court should not be deciding the case at all.) Yet in Perry, the Justices split along very unusual lines: conservatives Roberts and Scalia, voting against jurisdiction, were joined by the more liberal Breyer, Kagan, and Ginsburg. On the other side were conservatives Thomas and Alito, joined by the more liberal Sotomayor and the mercurial Kennedy.
It is impossible to be sure how these Justices would have voted on the merits, and, interestingly, not one said a word about it. But based on the opinions in Windsor, Perry looks like it would have been a 5-4 decision in favor of same-sex marriage, with Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan in the majority. That three of these Justices voted against jurisdiction suggests that they might have been worried about moving too fast, writing a broad decision that inspired a backlash. Breyer does seem a genuine believer in judicial restraint, and Ginsburg has worried publicly that Roe harmed the cause of women’s rights by foisting an abortion “solution” upon a nation not ready or willing to accept it.
If this theory is right, then the behind-the-scenes story of Perry is of liberal Justices exercising restraint, declining to seize a victory that could have been theirs. It would not be surprising if Ginsburg and Breyer, rather than Kennedy, turned out to be the ones that held back the pro-same-sex marriage bloc. Kennedy is often considered a swing Justice, but this is true largely in the sense of swinging for the fences: Kennedy may go left, or he may go right, but he almost always goes big.
In this context, though, Ginsburg’s worries are probably misplaced. The Court’s equality decisions, even the controversial ones, have won public acceptance. (Brown v. Board of Education, integrating the public school systems, is now an unquestioned icon of our jurisprudence, but at the time, it inspired massive resistance and public denunciation by hundreds of elected officials, requiring the intervention of federal troops for its implementation.) That may be so in part because the Court tends to move incrementally. But it is also so because disputes over equality get settled in a way that the abortion controversy likely never will be. Past discrimination based on race and sex seems outrageous and unjustified to the present in a way that opposition to abortion probably never will. As I detailed in an earlier post, sexual orientation discrimination is on its way into the outrageous category, and nothing the Court does can halt that progress.