Ultimate battle for gay marriage supporters: their fellow Americans

Supporters of gay marriage must recognize that the American people themselves, not the Supreme Court, are the ultimate arbiters of law. That’s why their most important work is in the court of public opinion.

The public reaction to a federal judge’s decision declaring California’s prohibition of same-sex marriages unconstitutional has again demonstrated that Americans have deeply held and divergent views about gay marriage. The closely reasoned and factually robust opinion of US District Court Judge Vaughn Walker may well be the vehicle that compels the United States Supreme Court to determine what is meant by the “right to marry.” It is a question state supreme courts have grappled with for nearly two decades. But it is not a question for judges only.

The most intriguing aspect of Judge Walker’s thorough and cogent 135 page opinion is his assertion that the support of California voters for Proposition 8 limiting marriage to opposite-sex couples is “irrelevant, as fundamental rights may not be submitted to a vote; they depend on the outcome of no election.”

Judge Walker’s statement is absolutely correct in the constitutional context in which it was used. Neither California voters nor the voters of any state can amend their respective constitutions to deny rights guaranteed by the United States Constitution. If Walker’s decision is ultimately affirmed by the US Supreme Court, state constitutional provisions in some 30 states restricting marriage to opposite-sex couples would be null and void.

A potential federal constitutional amendment

There is, however, a constitutional context in which the views of California citizens (and citizens of every state) may be very relevant to the right to marry. It is a circumstance in which a right declared fundamental by the United States Supreme Court may be submitted to a vote. Although most observers (myself included) believe it unlikely that the Supreme Court as currently comprised would embrace Walker’s legal analysis, it is a virtual certainty that if the Court did so, there would be an attempt to “overturn” its decision by constitutional amendment.

For another view, read "Gay marriage: Why Judge Walker got Proposition 8 ruling wrong"

Proposals to limit the right to marry by amending the federal Constitution to incorporate a “traditional” definition of marriage have been considered by Congress, but the impetus would be far greater in the face of a United States Supreme Court decision recognizing a right to gay marriage. Two-thirds of both Houses of Congress, or the legislatures of two-thirds of the States, may propose such an amendment, three-fourths of the States (either by legislative vote or constitutional convention) being necessary for ratification.

In fact, Walker determined that a judicially mandated right to same-sex marriage is vulnerable to limitation by constitutional amendment. His ruling found that the “legal disadvantage for gays and lesbians” arising from stereotypes is significant. Indeed, as one of the trial’s expert witnesses noted, between 1998 and 2008, voters in 30 states passed amendments limiting marriage to a man and a woman – usually by a large margin.

Walker’s decision may be the beginning of a journey to two locations of constitutional authority. The first, chosen by the eminent lawyers Theodore Olson and David Boies, who lead the challenge of Proposition 8, is populated by judges. The second (if the challenge is successful) may be populated by “the people themselves” intent on amending the US Constitution to conform with a traditional definition of marriage.

As a supporter of same-sex marriage, it would be difficult for me to envision a more unhappy result than a decision of the US Supreme Court affirming a right to gay marriage, which would then be “reversed” by an amendment to the US Constitution limiting marriage to opposite-sex couples. Yet as implausible as such a scenario may seem today, it is at least worth reminding ourselves that such an outcome would be constitutionally legitimate.

“I never heard of an appeal being taken from the Supreme Court” said Stephen Douglas in defending the Court’s infamous 1857 Dred Scott decision that held slaves to be private property, prompting Abraham Lincoln to reply that the Court does not issue Holy Writ. The pre-eminent progressive legal scholar, Larry Kramer, is even more direct in “The People Themselves: Popular Constitutionalism and Judicial Review”: “The Supreme Court is our servant and not our master...a servant who is ultimately supposed to yield to our judgment about what the Constitution means and not the reverse.”

Rights in a democratic society

Judicial opinions – no matter how persuasive as a matter of legal reasoning and factual findings – cannot foreclose debate on matters of great moral and social consequence to a divided democratic society. Jon Stewart makes the point ironically in “America (The Book)”: “...the Supreme Court rules that the right to privacy protects a woman’s decision to have an abortion and the fetus is not a person having constitutional rights, thus ending all debate on this once controversial issue.”

As a matter of law, Walker’s decision will be reviewed by judges. Whatever the outcome, the legitimacy of the judicial response depends not on the judges themselves – but on the constitutional values of the American people.

That’s why, as supporters of full marriage equality work to uphold Walker’s ruling in the coming month and years, they must remember that affirmance ultimately resides in the the humanity of their fellow citizens.

Jeff Amestoy is a former chief justice of the Vermont Supreme Court and a fellow at the Center for Public Leadership at Harvard’s Kennedy School. He was the author of Baker v. State, the 1999 decision of the Vermont Supreme Court that led to the nation’s first civil-union statute.

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