September 18, 2014

The Return of the Passive Virtues


2014 Constitution Day symposium, Adam Winkler, Bush v. Gore, Hollingsworth v. Perry, Lawrence v. Texas, Romer v. Evans, U.S. v. Windsor

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by Adam Winkler, Professor Law, UCLA School of Law. This post is part of our 2014 Constitution Day symposium.

In 1961, Yale Law School professor Alexander Bickel wrote a law review article extolling what he called the “passive virtues” of judicial decision-making. By this, Bickel meant that the Supreme Court might achieve better, more enduring results if instead of boldly asserting a constitutional vision the justices took small, narrow steps. He didn’t mean that the Court should stay away from controversial issues so much as lead the nation in a dialogue, venturing in on occasion to articulate important principles but allowing issues to percolate over time.

In an era where the Supreme Court is known for its aggressive assertions of power, most notoriously in deciding a presidential election in Bush v. Gore, it may be hard to take seriously any notion of a passive or tentative Court. In recent years, some liberal scholars such as Cass Sunstein have promoted judicial minimalism, though mostly one suspects because of the conservative makeup of the Rehnquist and Roberts Courts. Yet if there is one area where the Court has seemed to follow Bickel’s lead, it is LGBT rights and, in particular, marriage equality.

Consider that the Court has ruled on the constitutionality of laws discriminating or harming LGBT people in three major cases over the past twenty years: Romer v. Evans, striking down Colorado’s statewide ban on local anti-discrimination ordinances; Lawrence v. Texas, voiding bans on same-sex sexual relationships; and United States v. Windsor, invalidating the federal Defense of Marriage Act. These cases have been celebrated for expanding the constitutional promise of equal citizenship to LGBT people. And the justices have been criticized, too, for not going far enough. Romer refused to say that sexual orientation was a suspect classification triggering heightened scrutiny. Lawrence refused even to say that same-sex sexual activity was a fundamental right. Windsor was decided the same day as Hollingsworth v. Perry, where the Court used procedural issues to avoid ruling directly on the constitutionality of bans on same-sex marriage. 

Such criticism is certainly appropriate given that the Court’s half-steps leave LGBT people in limbo. After Romer and Lawrence, federal courts continued to uphold other laws discriminating against LGBT people, such as bans on adoption. Windsor and Hollingsworth literally left LGBT people in loving relationships at the altar, still unable to marry in the majority of states. This state of affairs must be changed and soon. For many, rights delayed are rights denied.

One way of thinking about the Court’s jurisprudence in this area is through the lens of the passive virtues. The Court’s half-steps, as disappointing as they have been to those of us who support equal rights for the LGBT community, may lead to more enduring and less politicized constitutional change. If the Court had aggressively asserted heightened scrutiny back in 1996, when Romer was decided, it would have likely led to same-sex marriage by a judicial decision quickly, rather than through the national dialogue we’ve been having ever since. Had the former happened, it might have triggered or fed a backlash, similar to what many people believe happened with the Court’s desegregation and abortion decisions. Indeed, it only took one decision of the Hawaii Supreme Court to trigger a wave of state referenda and legislation barring same-sex marriage.

An interesting thing has happened in the year or so since the Windsor and Hollingsworth decisions. The principles articulated in Windsor have led numerous federal and state courts to strike down restrictions on same-sex marriage; indeed, the record is 39-2. Yet there has been no backlash to speak of. Instead, we’ve seen judges appointed by presidents from both sides of the political aisle rule in favor of marriage equality. Would such rulings have happened in the absence of Windsor? Certainly the trajectory of LGBT rights would have led some courts to rule the same way. But the remarkable record of success is hard to imagine.

Given the near unanimous decisions in favor of marriage equality, the justices might decide not to hear a same-sex marriage case this term. Although several are pending at the Court, which is scheduled to consider whether to take a marriage case at its September 29 conference, don’t be surprised if the Court stays out of the fray – at least until there is a circuit split. A Court known for its bold assertions of judicial supremacy may be seeing that a passive virtues approach minimizes controversy. More importantly, employing the passive virtues – for all the disappointment we’ve felt over the past two decades – might lead to more stable and robust rights for all Americans.