ACSBlog

by Holning Lau, Associate Professor of Law, University of North Carolina School of Law

In my home state of North Carolina -- the most recent and probably last state to amend its constitution to ban same-sex marriage -- I have been fielding lots of questions from local couples wondering what impact, if any, the Supreme Court’s pending marriage cases will have here. The cases arose in California and New York. How might litigation that started so far away change things in our neck of the woods?

The cases before the Supreme Court -- Hollingsworth v. Perry and United States v. Windsor -- are unlikely to have any immediate legal impact on same-sex couples in places like North Carolina. With that said, the cases can accelerate change in our part of the country, and they have already given us a lot to celebrate. In this post, I will use North Carolina as an example to elaborate on these points, but my underlying analysis can be applied to any one of the many states that currently, like North Carolina, offer no legal recognition to same-sex relationships.

Immediate legal impact

Let’s start with why the two cases probably won’t directly or immediately affect legal rights in North Carolina. Hollingsworth is the case about Prop 8, the ballot measure banning same-sex marriage in California. The case concerns whether a state can deny same-sex couples the right to marry. The Court could take Hollingsworth as an opportunity to declare that no state, including North Carolina, is permitted to deprive same-sex couples of that right. Indeed, I helped to prepare an amicus brief that supports that conclusion and I certainly welcome it. Conventional wisdom, however, is that the Court won’t make such a bold move. Some supporters of marriage equality counsel against a bold move, fearing the backlash that it would foment.

Based on last week’s oral arguments, I suspect most of the justices are struggling to choose between dismissing the case on procedural grounds and striking down Prop 8 in a way that minimizes spillover effects to other states. I doubt that a majority of the justices will vote to uphold Prop 8.

Dismissing the case on procedural grounds (discussed more fully here) would allow the Court to avoid having to either strike down or uphold Prop 8. It would simply be saying that, for technical reasons, the case is not properly before the Supreme Court. If the Court adopts this reasoning, Prop 8 would be unconstitutional because the California couples prevailed in lower court. However, because the Supreme Court itself would not be saying anything about same-sex marriage, states beyond California would remain unaffected.

by Jeremy Leaming

Even before the U.S. Supreme Court heard oral argument in two cases dealing with government discrimination of gay couples who want to get married, a growing chorus of legal scholars and others urged the high court to move slowly. Because, according to these folks, if the justices declare that lesbians and gay men have a constitutionally protected right to wed, a backlash against the marriage equality movement could be unleashed.

And proof for such a backlash centers on the high court’s 1973 Roe v. Wade opinion, which found that the right of privacy includes the right of women to make their own decisions on abortion. According to proponents of moving slowly on marriage equality, Roe sparked a backlash against growing support of abortion and now we have state after state trying to trample the fundamental right. Therefore the backlash proponents argue that the justices should learn from Roe and avoid handing down a ruling that would end government discrimination against gay couples seeking to wed. This backlash story has been fueled in part by Justice Ruth Bader Ginsburg, who while defending the Roe decision, said the Court moved to fast.

But as an editorial in The New York Times notes, the backlash proponents are basing their argument on a “false reading of politics before and after Roe v. Wade ….” The editorial cites the work of ACS Board Members Linda Greenhouse and Reva Siegel, both teach at Yale Law School, documenting the fact that the fevered opposition to reproductive rights was forming long before the high court handed down Roe.

In a 2010 interview with ACSblog, highlighting their Before Roe v. Wade book, Greenhouse and Siegel said the documentation they collected for the book showed “that, contrary to the commonly expressed view that it was the Supreme Court and its decision that unleashed a ‘backlash’ against abortion reform, a vigorous counter-movement was forming well before Roe. In the late 1960s, as public support for liberalization surged, the Catholic Church helped organized an anti-abortion movement to oppose liberalization in every state legislature and court considering abortion laws. Strategists for President Nixon’s 1972 re-election then decided to denounce ‘permissive’ abortion laws to attract Catholics from their longtime affiliation with the Democratic Party and court the support of a ‘silent majority.’”