How Marriage Equality Made it to the US Supreme Court: The Active Use of the Passive Virtues

Dr Conor O’Mahony

prop8supremecourtOn Friday, the US Supreme Court agreed to hear a case concerning the constitutionality of laws prohibiting same-sex couples from marrying. This will not be the first marriage equality case to be heard by the US Supreme Court – judgment was delivered in two previous cases in June 2013 – but this time, it looks likely that the decision will settle the issue on a nationwide basis, at least for the time being.

The 2013 cases did not do so because neither judgment directly addressed the question of whether State laws prohibiting same-sex couples from marrying violated the federal US Constitution. United States v Windsor concerned the federal Defense of Marriage Act, under which federal law restricted recognition of marriages to opposite-sex couples for taxation and other purposes (the law was found to violate the Fourteenth Amendment and was struck down).

However, access to marriage is regulated as a matter of State law, and thus Windsor
merely allowed same-sex couples who had married in a State with full marriage equality to have that marriage recognised at federal level. On the other hand, Hollingsworth v Perry was directly concerned with the constitutionality of such a State law – namely, California’s Proposition 8, which provided that only a marriage between a man and a woman was valid or recognised in California. The US District Court and the Court of Appeals for the Ninth Circuit had found Proposition 8 to violate the Fourteenth Amendment.

The Supreme Court granted certiorari and agreed to hear Hollingsworth, but having done so, the Court held that the petitioners (proponents of Prop 8) lacked standing to defend its constitutionality (the California executive had declined to do so). Thus, the Court did not proceed to address the merits of the case, and the decision of the Ninth Circuit was preserved. While this meant that marriage equality would become a reality in California, the decision had no immediate implications for the majority of US States. The US is divided into 13 Circuits (Federal, DC and First to Eleventh), and the rulings of each Circuit Court are binding only on the States subject to its jurisdiction. The Ninth Circuit has jurisdiction over nine States; the remaining 41 were not bound by its decision and were thus free to continue to restrict access to marriage to opposite-sex couples.

bickelWhy did the Supreme Court approach Hollingsworth in this way? Unlike the Circuit Courts, decisions of the US Supreme Court are binding nationwide. In cases where the text of the US Constitution is open to competing interpretations, and the views of the nation are in flux, the Supreme Court is often reluctant to address an issue head-on until such time as a consensus begins to emerge across a majority of States in the US. At this point, it can make a ruling that reflects that consensus and bring the minority states into line. In the intervening period, the Court can avoid entering the fray by utilising what Alexander Bickel, in his classic book The Least Dangerous Branch, famously called “the passive virtues” – devices like denying certiorari or standing that allow the Court to avoid pronouncing on the merits. In this way, Bickel argued that the Supreme Court should seek to control the timing and circumstances of a ruling, so that when it finally does rule, its decision will be one which is likely to gain widespread public acceptance either immediately or in the near future.

The Court in Hollingsworth did not expressly mention Bickel or the number of States that prohibited same sex couples from marrying (which, for the record, was 38 out of 50 at that time); but nevertheless, as I argued in my article in the 2014 Harvard Human Rights Journal, the decision to rule on standing and avoid proceeding to the merits was all about timing. It would not be unreasonable to speculate that the initial decision to grant certiorari was similarly motivated.

Supreme_Court_US_2010Only four justices out of nine need vote to grant certiorari, but five are needed for a majority judgment. In recent years, the US Supreme Court has invariably split 5-4 in controversial cases, with a clear conservative-liberal divide and Justice Kennedy usually (though not always) providing the swing vote. The conservative justices may have voted to grant certiorari in the view that Hollingsworth represented one of the last opportunities for the Court to rule against marriage equality before the balance of public opinion shifted beyond dispute in its favour. The liberal justices, on the other hand, seeing that same-sex couples were still prohibited from marrying in a clear majority of states, may have felt that the time was not yet right for a nationwide decision in favour of marriage equality. This is one plausible explanation for what otherwise seems like a curious process of agreeing to hear the case and then deciding not to decide.

Hollingsworth was less than two years ago, so what has changed since? Quite a lot, actually; on the issue of marriage equality, the picture at State level is unrecognisable from May of 2013. Whereas 38 States out of 50 prohibited same-sex couples from marrying then, 35 States out of 50 currently allow them to marry on an equal basis to opposite-sex couples. This represents nothing less than a landslide, with the balance of states that allow or prohibit marriage equality being inverted from three-quarters that prohibit to three-quarters that allow.

The US Supreme Court has a history of basing its rulings on controversial moral issues on what it terms “objective indicia of consensus” – i.e. State laws – particularly where the direction of change is clear and consistent. Notable examples include Lawrence v Texas 539 U.S. 558 (2003) (striking down laws criminalising sodomy), Atkins v Virginia 536 U.S. 304 (2002) (striking down the death penalty for the intellectually disabled) and Roper v Simmons 543 U.S. 551 (2005) (striking down the death penalty for minors). By comparison with these cases, the shift in consensus on marriage equality has been numerically more decisive, which might suggest that the decision will be straightforward.

Of course, there are alternative views, under which things are a little more complicated – at least in the eyes of constitutional lawyers. One point of interest among US scholars has been the way in which the Supreme Court phrased the question to be considered (see Adam Liptak’s excellent piece in the New York Times). The Court will consider two separate questions: one regarding the constitutionality of State laws prohibiting same-sex couples from marrying, and another regarding the constitutionality of State laws prohibiting the recognition of the marriage of a same-sex couple who legally married elsewhere. If the Court wanted to avoid potential backlash, it is possible that it might uphold the former and strike down the latter, thereby moving the issue forward a little while avoiding being seen to legislate from the bench on the main controversy.

A further complicating factor, receiving less attention, is the manner in which the pro-marriage equality landslide in State laws has come about. The reason the Supreme Court looks to State laws as objective indicia of consensus is that they are enacted or repealed by elected representatives of the people. However, although the number of States with full marriage equality has increased from 12 to 35 since Hollingsworth, 23 State legislatures have not voted in favour of marriage equality in the interim. In fact, only five have (Connecticut, Hawaii, Illinois, Maryland and Washington, with a referendum confirming the decision in the latter two). In Maine, marriage equality was introduced on foot of a popular initiative (i.e. a vote of the people initiated by way of a ballot petition signed by a set number of voters).

In the sizeable remainder (17 States out of 23), marriage equality became legal due to a court ruling. While State laws passed by legislatures or in referendums might be considered “objective indicia of consensus”, it is difficult to argue that court decisions should be viewed in the same light. This is particularly the case when the law that was struck down was, in many instances, introduced on foot of a referendum vote amending the State constitution just a decade (or less) earlier. In several of the States (Utah being an example that immediately springs to mind), it could be seriously questioned whether marriage equality could have been introduced by the legislative and/or referendum route in the short term.

There is more. Friday’s decision was not the first time that the Supreme Court has been asked to hear a marriage equality case since Hollingsworth. It was previously asked in October 2014, when it denied cert in seven petitions involving five different States. I mentioned earlier that denying standing or cert are two examples of Bickel’s passive virtues. However, in this instance, the denial of cert may not have been entirely passive, in that the effect was not exactly to preserve the status quo. On the contrary: the denial of cert in October not only preserved court rulings in favour of marriage equality in five States, but triggered a domino effect, since identical litigation was underway in almost all of the other States in the three Circuits involved. The denial of cert meant that the rulings in question became the controlling precedents for those Circuits, thus making it inevitable that the litigation underway would succeed at the latest at Circuit Court level. At a stroke, the Supreme Court’s denial of cert in October paved the way for the introduction of marriage equality in the five States directly involved, and another 12 States indirectly affected, over the following weeks.

Bickel illustrated the passive virtues in action though the litigation surrounding State laws prohibiting interracial marriage. Even though such laws seemed clearly contrary to its ruling in Brown v Board of Education 347 U.S. 483 (1954), the Supreme Court denied cert in Naim v Naim 350 U.S. 985 (1956), when a majority of 28 States had such laws. It eventually struck them down 11 years later in Loving v Virginia 388 U.S. 1 (1967), when a clear minority of just 16 still had them (12 State legislatures repealed their laws in the interim).

While there are obvious parallels between those cases and the marriage equality cases, the big difference is that the present Supreme Court has not simply sat back and waited for State legislatures to pass laws indicating that the majority of States now favour marriage equality. Instead, it has waited for courts to strike down laws indicating the contrary – and it has helped to facilitate that process through its denial of standing in Hollingsworth and, more particularly, its denial of cert last October. Had cert been granted in October, the issue would have come before the Supreme Court at a time when marriage equality would have been a reality in just 18 States. The increase (of almost 100%) to 35 came about entirely because of the decision to deny cert at that point and the domino effect created by the preservation of Circuit Court rulings and widespread strategic litigation. A harsh critic might say that the Supreme Court has been discreetly massaging the figures in advance of an ultimate decision in 2015. It has not just waited for the numbers to favour a pro-marriage equality decision; it has indirectly helped to make those numbers look the way that they do.

Whether any of this will be seen to matter depends on whether the Supreme Court chooses to make an explicit issue of “objective indicia of consensus” in its ruling. It did so in the death penalty cases, but this approach is fairly well established in Eighth Amendment case law assessing “evolving standards of decency” with respect to what society regards as “cruel and unusual punishment”. It is less common in Fourteenth Amendment case law, although it did feature in Lawrence, which of course was another gay rights case. However, those cases involved overruling a previous Supreme Court decision to the contrary, and so the Court may have felt compelled to explain what had changed in the meantime.

Here, like in Loving v Virginia, there is no previous decision to overrule; the only thing the Court is changing is its mind on is whether the issue is ripe for a final determination. Thus, while the number of States with laws in favour of or opposed to marriage equality is likely to be something that features prominently in the Justices’ thinking, it may not feature at all in their judgment, which (again like in Loving v Virginia) may focus entirely on the Fourteenth Amendment, standards of review and associated matters.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw

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