Justice Anthony Kennedy (via Wikimedia)

Justice Anthony Kennedy (via Wikimedia)

I predict this year the United States Supreme Court will find that under the Due Process clause of the 14th amendment that it is unconstitutional for the states to ban same-sex marriage. This is the civil rights moment of our era–the time is coming when we will look back and consider bans on same-sex marriage to be as mind-boggling and absurd as the ban on inter-racial marriage.

In Loving v. Virginia (1967), the Supreme Court held that all Americans have a fundamental right to marry. Writing for the majority, Chief Justice Earl Warren stated, “Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.” Nowhere in Loving did the Court carve out an exception permitting discrimination against gays and lesbians.

In Lawrence v. Texas (2003) the court overturned laws against sodomy, homosexual sex, and other intimate consensual sexual conduct–again under the Due Process clause of the Fourteenth Amendment. In fact, Justice Antonin Scalia complained in a vitriolic dissent that the principles and rationales used in Lawrence will logically serve as precedent for one day declaring it illegal to ban gay marriage.

Scalia at that moment was ironically a true prophet!

Embracing same-sex marriage is much bigger than granting full constitutional freedoms to all adult Americans; it is about beginning the process of healing for an entire group of people who, for more than 235 years in the United States, have been forced to live in darkness and shame. It is about erasing the embarrassment, judgment, piercing feelings of insecurity and pain that have been inflicted upon gay and lesbian youth. Numerous studies have shown that gay, lesbian and bisexual youth are victims of abuse, intolerance, and bullying, and as a result have much higher substance-abuse and suicide rates than their heterosexual counterparts.

Under the Equal Protection Clause of the Fourteenth Amendment, laws based on bigotry towards homosexuals are illegal. In Romer v. Evans (1996), the Supreme Court struck down a Colorado law that denied homosexuals purported “special rights.” The Court found that mere “animus” was not a legitimate reason to single out homosexuals in state laws. Scalia dissented, protesting that Legislatures should be able to pass laws based on moral disapproval of homosexuals. Under Equal Protection requirements, states cannot do this and the Court needs to clarify this NOW.

There is ample legal precedent for the Supreme Court to make a landmark decision. Four justices will almost certainly find bans on same-sex marriage unconstitutional based on Due Process and/or Equal Protection requirements. The ball rests in the hands of conservative “swing voter” Justice Anthony Kennedy. Kennedy wrote the majority opinions in Romer and Lawrence. Perhaps Chief Justice John Roberts will also join the majority opinion if he wants to be more than a footnote in history. Kennedy has cited changing social mores and emerging trends as a guide in finding fundamental rights. Indeed, changing social mores rebuts the argument Scalia will make that the Supreme Court in 1967 did not contemplate gay marriage when the Loving decision was made.

Public opinion in America is swinging strongly from intolerance to acceptance of homosexuality. Following this change in social mores, more and more states are removing their bans on gay marriage. The tide has certainly turned. I assume Justice Kennedy has long known that based on legal precedent and moral imperative the court must acknowledge that all people have a constitutional fundamental right to marry. Kennedy’s legacy is now on the line. He turns 77 on July 23rd and knows the clock is ticking. I’m betting on him to embrace the moment (and the inevitable) and deliver justice, long denied and overdue.

Before posting this, I bounced my position off of one of the preeminent constitutional scholars in our country. While she knows 50 years of legal precedent could be discarded if Scalia gets just one more justice on his side, she didn’t tell me I was off base. She just smiled and said, “I hope you’re right. My fingers are crossed.”

So are mine.

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Posted in Same-Sex Marriage, Supreme Court
  1. Wyatt Hanson says:

    Nice blog, Vincent. WA made me proud last year!

  2. Xavier Sibaja says:

    I agree that this case goes well beyond gay marriage, as it is more about the legacy of exclusion of discrimination in the USA. A case in point is Loving v. Virginia the last vestige of Anti-miscegenation laws. Both restrictions on interracial legal unions and same-sex unions bear the brunt of intolerance.

    What is more striking is what has been holding legalizing gay marriage, and that is fear mongering, and not arguments based on ample evidence that gay marriage is truly detrimental to this institution. Of course, only fear mongering had a chance to block gay marriage as it was proved in Mexico City. Here, conservative groups thought that by claiming that gay marriage was going to be detrimental to the family institution, they would have been able to overturn the legislation passed by the Mexico City Assembly.

    Since the challenge to the new law presented unprecedented social and legal scenarios the Supreme Court, not very accustomed to see groups challenging new laws, decided to go technical. The justices went to multidisciplinary professionals to put to test the claim of the new law been an irreparable damage to the Mexican family. Because the professionals could not produce bullet-proof studies determining gay couples as exceptionally dysfunctional, or of gay couples living with children been exceptionally dysfunctional families, the court had no to choice but to turn to the Constitution.

    Family has an important place in the Constitution and in Mexico’s “organic laws.” These laws establish clear protections and also reference the State’s obligation to protect the family. However, the question emerge what is a family? Turn out that family, as a legal definition, had evolved in this country over the years. From a nuclear model, the family evolved to parents living with a single mother, then a single mother living with the offspring and a sister, or an aunt. With time, longstanding cohabitation with unrelated individuals became a form of family legally recognized in 2006 as Ley de Sociedad de Convivencia.

    This law gives protection to individuals living under the same roof who have assumed responsibility for their mutual well-being. For these reasons the Mexican court found that gay marriage was a way to protect the family by legally binding members willing to commit to a longstanding cohabitation and be co-responsible of each other’s welfare.

    Without a family definition there is no substance to marriage. Therefore as a society we need to protect the family, not a formality.

  3. Douglas Green says:

    Great piece. But my guess is different.

    I think Justice Roberts has signaled, by inviting his lesbian cousin to the hearing, that this will not turn out the way Scalia would like (some sort of official statement of the immorality of homosexuality). However, I’m wondering if Roberts will find a ‘third way’ to go, as he did with health care last year.

    The battle over Prop 8 wasn’t only about gay marriage. It was also about the purely legalistic and constitutional question of whether a popular vote can overturn a state law. The California Supreme Court had declared gay marriage legal by the state constitution, and Prop 8 was designed to overturn that. Of course, if that were legally valid, Alabama could have overturned the Emancipation Proclamation in 1870 if they’d wanted!

    So while Mr. Miller’s argument is very sound, my guess is that the court will find a narrower result, about how states get to make decisions, and leave the actual question of same-sex marriage up to history, whose tide is rushing with unprecedented speed.

  4. Big Dub says:

    While I believe they will not rule the way that you do I believe they will conclude it is the province of the individual states and then hold, pursuant to the full faith and credit provisions of the Constitution, every state must recognize any marriage of a same sex couple that took place in a state where such marriage was legal. This would mean same sex couples legally married in a state that allows same sex marriages must have their marriage legally recognized by any other state. The same thing presently happens when folks who are common law spouses under another state’s laws move to California. The marriage is and must be recognized.

  5. Shelly Yoo says:

    Nice article Vincent, I do hope that you’re right and will keep my fingers crossed and eyes glued on the SCOTUS. I do believe that the holdings in these cases will eventually lead to same-sex marriage rights all across the country, but I’m uncertain as to whether it will actually happen through these cases currently before the SCOTUS. Judicial precedent (as you mentioned in Loving, Romer, and Lawrence) as well as the unprecedented shift in the public’s perception on same-sex marriage, does create the ideal scenario for the SCOTUS to finally take a position on same-sex marriage.

    However, the breadth of that position is unpredictable. The two cases that are before the SCOTUS are somewhat unusual because neither is a straightforward case on the unconstitutionality of bans on same-sex marriage and can have a wide array of results.

    First, with Proposition 8, the SCOTUS can leave the holding of the unconstitutionality of Prop 8 (as the District Court and the 9th Circuit have held) by merely finding that the proponents of Prop 8 don’t have standing. Or they could go the likely route of finding unconstitutional the unusual circumstance of events that occurred in California, the granting of rights (by the CA Supreme Ct) which were subsequently taken away from a group of persons due to their sexual orientation (by Prop 8). Even though I really hope for it, I don’t know if Perry (the Prop 8 case) is going to be the platform that SCOTUS uses to find the ban on same-sex marriage to be unconstitutional in all states.

    As for DOMA, it also seems likely that SCOTUS will have a holding that will find DOMA (at least section 2) unconstitutional. However, I don’t believe the Court will necessarily expand that to find all prohibitions on same-sex marriage in all states to be unconstitutional. Since DOMA is federal and the big argument against DOMA (aside from its unconstitutionality and violation of equal protection of course), is that marriage should be within the purview of states to define and not the federal government. I don’t necessarily see the SCOTUS reaching beyond the federal borders and going into state marriage issues. We all know how narrowly the SCOTUS likes to make their holdings.

    I definitely agree that it’ll come down to Justice Kennedy and possibly even Justice Roberts. I also agree that it is highly likely that SCOTUS will have pro-gay rights holdings, because of everything you state. This will inevitably create amazingly positive precedent that will subsequently lead to equal rights for myself and my peers in the LGBT community. I really do hope for sweeping holdings that plainly state that all prohibitions on same-sex marriage are unconstitutional, but any positive holding is a win in my book.

  6. alex says:

    Nice blog Vincent. I hope you’re right although as a principle I do not gamble and making predictions about how the Supreme Court will decide a particular issue or case is well beyond my pay grade. I’ll be watching and thinking about your opinions here when they hand down the decision.

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