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.