Twenty-five years ago, same-sex marriage was for all practical purposes unthinkable. Today, it seems close to inevitable. This remarkable shift highlights the particular difficulty of the marriage equality case that came before the Supreme Court on Tuesday—but also points to the right result. On the one hand, the petitioners are asking the Court to recognize a constitutional right to something that until recently few Americans even deemed conceivable, and the Court is not the usual forum for radical change. On the other hand, once the question began to be asked, it turned out states had no good reason to deny recognition to gay and lesbian couples who seek to marry, as has become ever more clear over the past two decades. At this point, the Court has only two choices: to vindicate the demands of equality and liberty, or to validate discrimination. There is no third way.
During two and half hours of spirited argument, the Court did not telegraph how it will decide the case—largely because Justice Anthony Kennedy, almost certainly the swing vote, did not reveal which way he was leaning. But the theme of unthinkable versus inevitable framed the debate. The arguments opened with Chief Justice John Roberts asking if same-sex marriage proponents were not inviting the Court to redefine the institution of marriage, and Justice Kennedy noting that “for millennia,” marriage had been defined as a union between a man and a woman, suggesting that it may be too soon for the Court to say otherwise. The arguments ended with Justices Elena Kagan and Sonia Sotomayor asking the states’ lawyers how recognizing a same-sex couple’s right to marry could possibly undermine the asserted interest in protecting traditional heterosexual marriages.
In the end, the justices’ questions came down to two basic issues. First, who should decide whether same-sex couples have the right to marry—the Supreme Court or the people? And second, do the states have any good reason for excluding same-sex couples from marriage? The answers, I will suggest, are interrelated. Precisely because the states are unable to advance any good reason for refusing to recognize same-sex marriage, it is up to the Court to decide the matter, because the Constitution forbids relegating same-sex couples and their children to second-class status.
Justice Kennedy expressed his concern about intervening precipitously in a recent social movement, observing that “the word that keeps coming back to me in this case is millennia…. This definition has been with us for millennia. And it’s very difficult for the Court to say, oh, well, we know better.” Justice Antonin Scalia articulated a similar worry: “the issue, of course, is not whether there should be same-sex marriage, but who should decide the point…. And you’re asking us to decide it for this society when no other society until 2001 ever had it.” And Chief Justice Roberts noted that given the pace of change, the issue might be better resolved through the democratic process than by a constitutional decision imposed by the Court. As he told Mary Bonauto, counsel for the petitioners, who are seeking to overturn bans on same-sex marriage in four states, “if you prevail here, there will be no more debate. I mean, closing off debate can close minds, and it will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”
These are not insubstantial concerns. A decision by the Court to recognize same-sex marriage would be a momentous one, and some citizens would no doubt condemn it as judicial activism. But much as when the Court was asked to rule on the validity of racial segregation or sex discrimination, the consolidated marriage cases now before the Court, Obergefell v. Hodges, require the Court to resolve a fundamental question of equal protection. And as society’s notions of equality evolve, the Court has recognized that evolution by vindicating “new” claims to equal treatment. The Court once upheld laws barring women from practicing law; today, it demands full equality for women.
The Constitution’s equal protection clause requires a state to justify its differential treatment of similarly situated individuals. Where a state draws distinctions on the basis of certain suspect categories, such as race, sex, national origin, or religion, the Court applies “heightened scrutiny,” under which state laws are invalid unless the state can show that they further an important government interest. Thus, in 1996, the Court invalidated longstanding laws limiting women from attending military academies in Virginia and South Carolina because the states could not show that excluding women served an important government interest in a closely tailored way.
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The Court has not yet announced whether discrimination on the basis of sexual orientation, such as the same-sex marriage bans at issue in Obergefell should trigger heightened scrutiny. The United States, supporting the same-sex couples, argues that such a standard should apply, because lesbian and gay people meet all the criteria the Court has announced for heightened constitutional protection: they have been the victims of historic discrimination; sexual orientation is not generally relevant to an individual’s ability to perform in society; sexual orientation is a distinct and relatively immutable characteristic; and gay men and lesbians are a discrete minority.
But even if the Court were not to find that heightened scrutiny of the same-sex marriage bans is warranted, the Constitution requires at a minimum a rational justification for treating similarly situated people differently. And here, the states simply do not have a rational justification for denying same-sex marriage. In the early marriage cases, the states often argued that they had an interest in preserving traditional marriage. But that is circular. One must identify a reason for preserving traditional marriage, and a theory for why recognizing same-sex marriage will undermine that interest. During Tuesday’s oral arguments, the states’ principal contention was that they seek to promote the bonds between parents and their biological children. Since gay and lesbian couples cannot procreate naturally, they maintain, that interest is not present with respect to their unions.
But as Justices Kagan, Sotomayor, and Stephen Breyer all noted, there are multiple problems with this argument. First, how does recognizing a same-sex marriage threaten the institution of heterosexual marriage? The states mused that it might change the “conception” of marriage, making it about “love and commitment” rather than parent-biological-child bonds. But people already get married for all sorts of reasons, and there is no evidence that the recognition of same-sex marriage has had any deleterious effect on heterosexual marriages. Nor is there any reason to think it might. Second, the states permit marriage by heterosexual couples who have no desire or capacity to bear children; why don’t such marriages, presumably based on “love and commitment,” pose the same problem? Third, same-sex couples do have children who are biologically related to at least one of them, through in vitro fertilization or surrogacy. And fourth, the states permit same-sex couples to adopt children, and surely the states have the same interest in fostering parental bonds to adopted as to biological children. Why should the hundreds of thousands of children of same-sex couples be denied the benefits of having married parents? In short, once the states’ proffered justification is subject to any scrutiny at all, it falls apart. And if it cannot be justified, the differential treatment of same-sex and opposite-sex couples violates equal protection.
So how should the Court navigate between the demands of constitutional doctrine, and several of the Justices’ prudential reluctance to resolve this issue? The answer, I think, is straightforward. Having taken up the matter, it is the Court’s obligation to resolve it. There is no neutral position. Either the Court vindicates the couples’ equal protection rights, or it validates the states’ discrimination against same-sex couples. To “leave it to the democratic process” is to deny the constitutional claim to equality. Same-sex marriage was only unthinkable as long as we didn’t think of it. Once we confront it as a matter of reason and constitutional principle, as the Court must, it becomes undeniable, and therefore inevitable.
Solicitor General Don Verrilli, in the most powerful moment in the argument, and one of the most important in his career, put it as eloquently as anyone could, and so it is fitting, at least until the Court decides the case, to give him the last word:
What the Respondents are ultimately saying to the Court is that with respect to marriage, they are not ready yet. And yes, gay and lesbian couples can live openly in society, and yes, they can raise children. Yes, they can participate fully as members of their community. Marriage, though, not yet. Leave that to be worked out later…. But what these gay and lesbian couples are doing is laying claim to the promise of the Fourteenth Amendment now. And it is emphatically the duty of this Court, in this case … to decide what the Fourteenth Amendment requires.
And what I would suggest is that in a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community, that it is simply untenable, untenable, to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals. Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.
