In same-sex marriage, Supreme Court walks a middle road

In its two decisions that benefit same-sex marriage, the Supreme Court neither remains silent nor makes a definitive ruling. Instead, it demonstrates its power to participate in ongoing public discourse about a controversial social issue, without drowning out further debate.

J. Scott Applewhite/AP
Gay rights advocate Vin Testa waves a rainbow flag in front of the Supreme Court at sun up June 26. The court's two rulings benefited gay marriage. Op-ed contributor Robert A. Schapiro writes: 'While avoiding a direct decision on the constitutional issue, the court embraced same-sex marriage, employing the same appreciative language for same-sex couples that it used to describe traditional forms of familial connection.'

What should the US Supreme Court do when facing a contested moral issue? In today’s rulings in two same-sex marriage cases, the court decided to add its voice to the public discussion, rather than either remain silent or offer a definitive ruling that might end additional democratic development. The court thus demonstrated its power to participate in ongoing public discourse, without drowning out further debate.

Specifically, the court today acknowledged that states have the right to define marriage, and struck down the federal Defense of Marriage Act (DOMA) that denied federal benefits to gay couples legally married under state law.

In another case, it found that proponents of California’s Proposition 8, which defined marriage as between a man and a woman, had no legal right to contest a lower court’s overturning of Proposition 8.

The decisions – both narrow 5-4 rulings – benefit gay marriage without ruling explicitly on its constitutionality.

In addressing controversial social matters, this court apparently fears getting ahead of social change, but neither does it wish to be left behind.

That has not always been the case. Roe v. Wade, the controversial 1973 decision establishing a constitutional right to abortion, is often cited as the court’s anticipating a moral consensus that failed to emerge. In Bowers v. Hardwick in 1986, by contrast, the court rejected a right to same-sex intimacy in language that in retrospect appears harsh and intrusive. The court was burdened by Bowers for 17 years, until its overruling in Lawrence v. Texas in 2003. The Roe controversy continues to this day.

When dealing with highly charged social issues, one tactic at the court’s disposal is simply to avoid an issue and await further legislative activity. Inaction, however, also has its price. A court that is seen to ignore injustice may lose its legitimacy in the eyes of the people.

Today’s decisions in the same-sex marriage cases demonstrate that the court has a vital additional option.

A majority of justices can indicate endorsement of a particular constitutional value, without mandating its enforcement throughout the nation. The justices can thus avoid the twin perils of remaining silent in the face of injustice or commanding immediate acceptance of their constitutional vision. They can shape the tide of public opinion, even as they avoid getting too far behind or ahead of it.

That’s what the court did today. In the California case of Hollingsworth v. Perry, which directly raised the constitutional right to same-sex marriage, the court did remain silent, finding procedural grounds on which to dismiss the appeal.

But in United States v. Windsor, the DOMA case, the majority spoke in clear and ringing tones. While avoiding a direct decision on the constitutional issue, the court embraced same-sex marriage, employing the same appreciative language for same-sex couples that it used to describe traditional forms of familial connection.

The majority opinion of Justice Anthony Kennedy repeatedly invokes the “dignity” of same-sex couples and criticizes DOMA for divesting “married same-sex couples of the duties and responsibilities that are an essential part of married life.” Justice Kennedy decries the federal statute for demeaning “the couple, whose moral and sexual choices the Constitution protects.”

And yet, the court limits it ruling to marriages recognized by state law. Congress cannot discriminate against these state-sanctioned unions, the court holds. The court does not answer the central question of whether states, themselves, can limit marriage to opposite-sex couples. The inference from the court’s opinion, though, seems clear. If the federal government cannot “discriminate” against same-sex marriages, state “discrimination” seems similarly suspect.

The import of the court’s language was clear to Justice Antonin Scalia. His vituperative dissent derides the court for duplicity in implying a federal right to same-sex marriage, while claiming to decide only the much narrower question of federal deference to state marriage law.

Justices Kennedy and Scalia have been down this road before. In Romer v. Evans in 1996, Justice Kennedy wrote the court’s opinion striking down a Colorado law based on its animus against homosexuals. Justice Scalia dissented, accusing the court of disingenuously ignoring the broader implications of its decision.

Those implications were later realized in Justice Kennedy’s opinion in Lawrence v. Texas in 2003 establishing a right to same-sex sexual intimacy. In his dissent in Lawrence, Justice Scalia claimed that the court was setting the stage for a constitutional right to same-sex marriage.

In this area, Justice Kennedy has led the court on a slow and steady path, insisting on the equal dignity of gays and lesbians, while moving cautiously in promulgating federal constitutional commands. We will see if Justice Scalia is correct about where this path will lead. In the meantime, even without a federal right, the court’s rhetoric of dignity and equality stands strong.

Robert A. Schapiro is dean and Asa Griggs Candler professor of law at Emory University School of Law.

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