LGBT issues

by Jeremy Leaming

Even before today’s oral argument in Hollingsworth v. Perry, some pundits urged the Supreme Court to go slow on same-sex marriage, essentially arguing marriage should be for the states to hash out and declaring that a Supreme Court decision that all states must recognize same-sex marriage could result in a backlash, thereby setting back efforts to advance equality for the LGBT community.

After reading the oral argument transcript, it seems that may be what happens since it did not appear a majority of justices were anywhere close to declaring that gay couples have a constitutional right to wed. That’s disconcerting since national polls and polls in California, birth of Proposition 8, reveal strong support for same-sex marriage. That’s not terribly surprising since marriage is about committed couples taking responsibility for each other and why should government officials want to discourage such responsibility.

Instead, the high court may be ready to dismiss the Prop 8 case on a technicality for it appeared that the high court’s left-of-center justices and possibly Chief Justice John Roberts and Justice Anthony Kennedy were not convinced that a few proponents of California’s anti-gay law are the proper people to be before the court.

Before Charles J. Cooper, attorney for the proponents of Prop 8, could delve into the substantive argument against same-sex marriage, he was asked by Chief Justice John Roberts, Jr. to address the “standing issue.”

Cooper said the proponents of Prop 8 “have standing to defend the measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.” (As noted in this interview with Columbia Law School Professor Suzanne Goldberg it is a bit odd for the Prop 8 proponents to insist they are representing the interests of the state of California, for the state’s governor and attorney general have both said the law should be invalidated as unconstitutional.)

Justice Stephen Breyer pointed to a friend-of-the-court brief filed on behalf of former U.S. Solicitor General Walter Dellinger saying it made a “strong argument” that the Prop 8 proponents “are really no more than a group of five people who feel really strongly” that they should vindicate the law.

The Dellinger brief, in part, argues that the proponents of Prop 8 have “noting more than a generalized interest in” enforcement of the law.  Citing high court precedent, the brief continues, that “the generalized interest a party shares with all members of the public in proper enforcement of the laws is not sufficient” to establish standing.

Justice Sonia Sotomayor noted that the while the California Attorney General has “no personal interest” in defending Prop 8, she does have “a fiduciary obligation,” to which Cooper agreed.

The standing question, as the Dellinger brief persuasively argues, could prove to be the winning argument, giving the Court a way to avoid tackling the substantive question of whether gay couples have a constitutional right to wed.

The substantive argument from Cooper and many of the groups lodging friend-of-the-court briefs centered on an alleged overriding governmental interest in marriage as a tool primarily for promoting procreation.

Cooper said that Prop 8 proponents are arguing that the States' interest in marraige is about promoting procreation. He told Justice Elena Kagan that the “essential thrust of our position” is that the states have a really strong interest in regulating procreation.

Justice Stephen Breyer asked Cooper, “What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? I mean there are lots of people who get married who can’t have children.”

by Eric J. Segall, Professor of Law, Georgia State University College of Law. Professor Segall is author of Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

Progressives and liberals in favor of same sex marriage need to be careful what they wish for when the Court decides the Defense of Marriage Act (DOMA) and Proposition 8 cases later this term. It would be easy to argue that the Court should overturn DOMA and invalidate Proposition 8 on the grounds that governmental classifications based on sexual orientation require heightened scrutiny, and neither California nor the federal government can satisfy that standard. The problem with the Court imposing a national rule, however, may be a serious backlash against the decision resulting in long term pain for everyone on the left. The lessons of Roe v. Wade might be instructive.

In the years preceding Roe, there was a popular momentum flowing through the states to make the right to choose a bit easier but legislative efforts to secure the right were blocked by the efforts of a strong and well-funded Catholic minority. There is a similar momentum now (albeit only recently) on the issue of same-sex marriage. The Court’s decision in Roe, however, not only slowed the momentum but created a significant backlash though not in the traditional way most people think. In ground breaking work, Professors Reva Siegel and Linda Greenhouse have suggested that, when it comes to the right to choose, women truly are better off today than they would have been without Roe, and that the case for backlash after Roe is overstated. They may be right when it comes to the right to choose, but they did not purport to ask another related but equally important question. Although the backlash on abortion specifically may be overstated, the use of the Court’s decision in Roe by right wing groups on issues other than abortion has been a major problem for the left. The rise of the New Right in the 1970’s led by Jerry Falwell and Phyllis Schaffly, the emergence of brash, young,  and conservative anti-choice republicans  and judges in the 1980’s, and the difficulty of confirming liberal judges in the Senate, can in significant part be traced to the criticism of the Court’s decision in Roe. As Cass Sunstein has argued, the rise of the Moral Majority was certainly assisted by opposition to Roe. Meanwhile, as far as the long-term effectiveness of Roe is concerned, not only does the case currently hang by the thread of Justice Kennedy’s robes, but in many states between the two coasts poor women still have an enormously difficult time securing safe, affordable abortions. This is not to say that the Court erred in Roe, but it is a fair question whether the backlash to the decision across a broad range of important issues was worth the somewhat limited abortion rights gained by the decision.