Artur Davis: The Gay Marriage Case That Will Really Matter

Continuing to pick over the remains of the Supreme Court’s news-making week, there is one other piece that should be examined. As my last posting argued, the Court’s decision to avoid the merits of Prop 8, Hollingsworth v. Perry, is hard to defend as a work of judicial analysis, given the anti-democratic veto power it puts in the hands of a Governor and Attorney General who disagree with laws their own constituents voted into existence. But I would argue that there is a real chance that taking Prop 8 on the merits might have ended disastrously for social conservatives, and that we have just gotten a good look at what the next super-showdown on the subject will look like.

The basis for all of that: a not well remembered Supreme Court decision from the mid nineties, Romer v. Evans. The case involved a Colorado constitutional amendment that sought to preempt a series of grassroots campaigns around the state geared toward winning more local protections for homosexuals. Under the amendment, which voters approved statewide, local jurisdictions were precluded from passing any form of initiatives  that had the effect of making sexual orientation  a “protected class”, analogous to race or gender.  In a majority opinion by Anthony Kennedy, the Colorado amendment was struck down on the ground that it blocked one class of the state’s citizens, its gay community, from exercising the ability to win favorable results in the political process, and that even under the lowest level of equal protection review, rational basis, there was no valid justification for such a limitation. One of the informal legal advisors for the litigants challenging the amendment: a rising Republican appellate whiz who had just missed being confirmed for a federal judgeship a few earlier, named John Roberts.

Romer did turn heads in 1996 because it was the first instance of the Supreme Court invalidating a law that was aimed at gays. But the reasoning, that a law couldn’t survive constitutionally if it simply reflected disapproval of homosexuality, seemed light years beyond the political culture at the time, which included a near unanimous passage of the Defense of Marriage Act, signed into law by a Democratic president. And for all practical purposes, Romer seemed to have almost nothing to do with DOMA, didn’t discourage it or generate any real challenge to it, and is not lauded in liberal legal circles in the same manner as Lawrence v. Texas’ 2003 overturning of local sodomy laws.

That was then. This week, Romer is cited heavily in and was one of the linchpins of the ruling ending DOMA, and had the Court chosen to decide whether Prop 8 violates the equal protection clause, it could not have avoided Romer’s potentially broad reach. Does a state referenda limiting marriage to its traditional definition somehow preclude gays from petitioning California’s legislature or judges to change that definition? Would the five justices who discarded DOMA have bought any rationale that there was a reason for Prop 8 other than moral apprehensions about homosexuality?

The shadow of Romer may explain why Roberts and Kennedy flipped sides on the two gay marriage cases, with Roberts the fifth vote to avoid hearing the merits of Prop 8, ostensibly a “pro” gay rights result, and Kennedy in dissent; and Kennedy the fifth vote to side with gay marriage advocates on DOMA, and Roberts in dissent. Perhaps Roberts didn’t relish the eventuality of distinguishing Romer, a result he helped strategize, from Hollingsworth, and Kennedy was all too eager not to distinguish them.  In turn, Scalia, an ardent foe of gay marriage, may have seen the same peril and joined Roberts to dodge the bullet, while Kagan, Breyer, and Ginsburg, who appeared in oral argument to be the justices most sympathetic to gay marriage, may have preferred for the time being, a less provocative resolution to a case that is so fraught with electoral and cultural implications.

It’s obvious enough that for reasons of legal strategy, the Romer precedent won’t be staved off much longer. There was a reluctance to offer too expansive a theory by the plaintiffs in this week’s cases, who feared an overreach that might up preserving DOMA and Prop 8, or invite both to be punted on procedural grounds; but having pocketed two wins, and having read the most sweeping parts of Kennedy’s majority opinion, those same constraints won’t obtain as much going forward. A Romer based strike at gay marriage statutes might also be safer than going back to the well of expanded privacy rights that makes Roe V Wade so polarizing, and with which both Kennedy and Ginsburg have found some fault.  And it could offer a tempting one way street for supporters of gay marriage: wipe out state referenda banning same sex marriage as bigotry-based efforts to close the public square, and force traditional marriage advocates to rely on state lawmakers or courts to write their views into state law, while opponents are free to take their case to voters first, and to use the courts and legislators as a fallback.

To be sure, the obvious tactical path for same sex marriage forces is, short term, a reprise of theHollingsworth scenario of winning by default. The very circumstances that made standing an issue in Prop 8, a state that bans gay marriage but elects a Democratic governor and Attorney General who refuse to enforce the ban, aren’t really so unusual: it could happen this fall if Terry McAuliffe and Mark Herring win in their respective races in Virginia, is hardly out of the question in Illinois, where a gay marriage push in the legislature has failed but pro gay marriage politicians occupy the statehouse and attorney general’s seat, and could happen post 2014 in any purplish border or industrial state.

But if the court balks at staking the momentum of gay marriage on a scenario where politicians blatantly overrun the political and judicial processes in their state–and one hopes that at least one of the five votes in Hollingsworth would—Romer will be available as the next likely inflection point. It would be a stunning foundation for a culture-changing mandate from the Supremes for, well, pick your reasons:  the idea that judges can or should ever be in the business of discerning what rationale motivates voters; the illusion that the defeated side in a statewide referenda is being cut out of the political process as opposed to being very much in it, just on the losing end; the hypocrisy of purporting to leave an issue to the states and then closing off one of the ordinary means states use to resolve controversies. But it’s possible, maybe even likely, that whatever radically activist proposition lies behind that door, there are already five votes on the Court to enshrine it into law.