As litigation and referendums relating to same-sex marriages continue around the country, so do the legal questions surrounding them. Professor Marc Spindelman, who teaches constitutional law and family law, and who is also an expert in lesbian and gay rights, has tracked the cases nationally and offers his insight.
What’s Perry v. Schwarzenegger calling to question?
In May 2008, the California Supreme Court issued a decision in The Marriage Cases recognizing a right to same-sex marriage under the state’s constitution. Later that same year, Californians amended their constitution to limit marriage to one man and one woman as husband and wife. That marriage amendment was unsuccessfully challenged in court as a violation of the very constitution it amended. In the course of turning that challenge back, the California Supreme Court recognized that The Marriage Cases had been overruled by the people, and gave the marriage amendment prospective effect. Situated against this backdrop, Perry is a challenge to the legal regime that the California Supreme Court ultimately affirmed. Its claim — brought under the U.S. Constitution — is that California may not deny same-sex couples the full marriage rights cross-sex couples can and do receive.
What makes the California case so compelling/legally important?
The federal constitutional challenge in Perry — with its potential to touch every state’s marriage rules, and the federal law of marriage, as well — is itself one of the most significant dimensions of the case. Until this suit was filed, advocates of marriage rights for same-sex couples had gone out of their way to avoid — and encouraged others to avoid — making a federal case out of gay marriage. Without doubting that same-sex marriage is encompassed by the federal constitution, defenders of same-sex marriage were concerned about a premature decision by the U.S. Supreme Court. It was imagined that the High Court might not give existing marriage precedents what is regarded as their full principled weight. Or, if it did, the thought was, the potential backlash against such a decision might be difficult to defend as a matter of national politics. These worries help explain why there initially was — and why there still is — a noticeable degree of skepticism about Perry as a vehicle for achieving marriage rights for same-sex couples, skepticism that holds even within the lesbian and gay communities. The great hopes for Perry, such as they are, are thus great hopes of and for great principles, and that those principles make for sustainable politics.
What legal challenges/difficulties do same-sex marriage cases include?
On one level, the doctrinal arguments for same-sex marriage, both for and against, are straightforward, if also, obviously, indeterminate. One can read the U.S. Supreme Court’s marriage precedents as establishing that marriage is a fundamental right that all individuals enjoy, regardless of their sexual orientation. Such a right is not to be directly and substantially restricted or abridged without a strong governmental justification. If so, then the case for same-sex marriage seems quite strong. Particularly if one takes the existing precedents to hold that traditional views of marriage are not a constitutionally adequate justification for marriage laws that discriminate against socially disadvantaged groups. Moving in the opposite direction, one can also read the Court’s marriage precedents narrowly, to have established no more than a fundamental right to cross-sex marriage. If so, the constitutional legitimacy of bans on same-sex marriage more easily carries, requiring presumably something less than a compelling governmental interest to defend them from constitutional challenge.
Behind these simple doctrinal arguments, of course, lurks a set of complicated and truly hard constitutional questions. Not least of all, What role should courts, and in particular the U.S. Supreme Court, play in the process of cultural definition and social change? Should courts decide what “marriage” is and means — or, as in California, should the people themselves? Having already come as far as they have in defining marriage as a constitutional concept, is there a principled way for the courts now to beat a partial retreat? Part of what makes Perry and other cases like it so difficult, so fraught, is that they’re not simply asking courts to settle an ongoing cultural dispute by taking the issue out of the political arena. They are asking course to adjudicate the constitutional legitimacy of fundamentally opposing — and clashing — worldviews. On the one hand, there is the claim that excluding same-sex couples from marriage relegates them — and lesbians and gay men, more generally — to a second class citizenship status, and that doing that is either animus-based or irrational in a relevant constitutional sense. By contrast, laws limiting marriage to cross-sex unions are defended either as a legitimate expression of morality or at the least a social tradition with deep roots that should be changed, if ever, only through ordinary political means. On this view, marriage bans have nothing to do with illegitimate social disadvantage, much less hate. How are courts to referee these questions? What will count as proofs? Which facts should count? When worldviews clash like this, it’s not easy to see what “neutral” conclusion in the case courts might reach.
Will there be a federal law recognizing same-sex marriage that’s binding on the states and the federal government?
Recalling Laurence Tribe’s admonition — that “[h]e who lives by the crystal ball is bound to eat a lot of ground glass” — I’m inclined not to speculate what’s going to happen with this cultural and political struggle. But through the cross-cutting trajectories, which make the future uncertain, it’s possible to discern that Perry itself, regardless of its legal outcome, seems to be shifting the political ground around, hence legal possibilities for, same-sex marriage. Ted Olsen, a solicitor general under President George W. Bush, is one of the public faces of Perry, perhaps even more than the plaintiffs themselves. When a social conservative with his credentials puts his full weight behind the notion that marriage is marriage, straight or gay, and that same-sex and cross-sex love just is love, it’s not hard to imagine which way this all might eventually shake out.
Professor Spindelman is an expert in constitutional law, family law, and lesbian and gay rights. A graduate of Michigan Law School, he clerked for Judge (now Chief Judge) Alice M. Batchelder on the U.S. Court of Appeals for the Sixth Circuit, worked on Wall Street, and held academic fellowships at Harvard Law School, and a program jointly administered by the Johns Hopkins School of Public Health and the Georgetown University Law Center. Copies of his scholarship, including on same-sex marriage, can be found on his faculty web page.
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