Decision Time

Gay Marriage, John Roberts and the U.S. Supreme Court

On February 14, 2003, Senator Rick Santorum of Pennsylvania strode to the podium at the center of the Senate floor with all the fiery passion that defined his Presidential campaign nearly a decade later.

“I rise today to introduce the Partial Birth Abortion Ban Act of 2003,” Santorum began.  “I am joined in introducing this bill by 38 of my colleagues, over a third of the Senate.  This bill is written to prohibit one particularly gruesome, inhumane, and medically unaccepted late term abortion method, except when the procedure is necessary to save the life of the mother.”

Santorum continued, “A little over two years ago, the U.S. Supreme Court, in its Stenberg v. Carhart decision, struck down a similar, but not identical, law in the state of Nebraska that banned partial birth abortions. … To respond to the Supreme Court’s concerns in Stenberg, this bill provides a very precise definition of the partial birth abortion procedure to make it very clear what procedure is meant.”

When Congress approved Santorum’s partial birth abortion bill months later, it was the conclusion of what was once an extraordinary yet predictable process: the Supreme Court overturns a federal law and Congress responds with a new statute, presumably one with firmer constitutional footing.  For generations, this system kept alive the founding principles of checks and balances; Congress could not pass unconstitutional laws and Supreme Court decisions limiting acts of Congress would receive prompt legislative responses.  But today, as Congress grinds to a halt in the face of unprecedented gridlock, the Supreme Court has more power than ever before.

According to a study conducted by Richard Hasen of the University of California, Irvine School of Law, Congress overrode a Supreme Court decision an average of 12 times during each legislative term from 1975 to 1990.  But in the last decade, that number fell to just 2.7.  Consequently, the Supreme Court almost always has the last word in contentious policy matters, even when Court decisions explicitly invite a Congressional response.  Moreover, as Hasen wrote in an email to The Politic, “when Congress does override now, it is more likely to do so on a partisan, rather than a bipartisan, basis.  I view both phenomena as a consequence of polarization in Congress.”

And as Congress grows increasingly polarized, the power of the Court only continues to expand.


Supreme Court terms are usually defined by a single case.  In 2012, it was the healthcare decision, officially called National Federation of Independent Business v. Sebelius.  In 2011, it was Brown v. Entertainment Merchants Association, which gave even disturbingly violent video games First Amendment protection.  And the year before that, it was Citizens United v. Federal Election Commission, which opened the floodgates to unlimited political spending.

This year, the Supreme Court’s schedule is far from set, but in all likelihood the term will be remembered for one salient issue: gay marriage.  According to experts, the Court will almost certainly consider challenges to the Defense of Marriage Act (DOMA), which codifies the government’s non-recognition of same-sex marriages for all federal purposes, including survivor benefits and hospital visitation.

By taking one of five DOMA-related cases currently awaiting judicial review, the Court will have the chance to radically reshape the legal concept of marriage, either reiterating the federal government’s opposition to gay unions, or advancing what many believe is the nation’s last remaining civil rights struggle.

Yet if the Court wants to wade even further into the gay marriage debate — a far less certain conclusion —it could consider Hollingsworth v. Perry (formerly Perry v. Brown), which challenges California’s 2008 Proposition 8, a ballot initiative that amended that state constitution to restrict same-sex marriage.  The plaintiff’s lawyers are Theodore Olson and David Boies, a political odd couple made up of the Republican and Democrat who argued against one another in Bush v. Gore, the landmark decision resolving the 2000 Presidential election.

In August of 2010, Judge Vaughn Walker of the Northern District Court of California sided with the plaintiffs, finding that Proposition 8 violated the Constitution’s Due Process and Equal Protection clauses.  In February of 2012, a three-judge panel from the Ninth Circuit affirmed Walker’s decision, ruling narrowly that California lacked the authority to take away the marriage rights because the Proposition was passed at least partially out of hostility toward gays and lesbians.

If the Court agrees to hear Hollingsworth, it is likely to narrowly tailor its decision so the impact would be limited to California.  But the Court could instead issue a sweeping ruling, declaring a national right to same-sex marriage or concluding that the Constitution permits states to deny gays the right to marry.

According to Richard Socarides, a Presidential advisor on gay and lesbian issues in the Clinton White House, “Depending on how broad the ruling is in the DOMA or Proposition 8 cases, they could be truly historic.”


The issue of gay marriage, long discussed in whispered voices and behind closed doors, was first thrust into the national spotlight in Baker v. Nelson, a 1972 case brought by a gay man who believed he had a Constitutional right to marry.  The Minnesota Supreme Court ruled in Baker that only persons of different sexes could obtain a marriage license and the US Supreme Court dismissed an appeal “for want of a substantial federal question.”

The issue again appeared on the national stage in 1996 with Baehr v. Miike (formerly Baehr v. Lewin), when the Hawaii Supreme Court ruled that denying marriage rights to same-sex couples violated the state constitution’s equal protection guarantee.  (A new amendment to the state constitution defining marriage as an institution between a man and a woman mooted the issue in Hawaii, but nonetheless thrust the debate into the national spotlight.)

Congress immediately responded with DOMA, which, in addition to defining marriage for federal purposes, also allows states to refuse to recognize a same-sex marriage performed in another state.  Moreover, the states themselves began passing gay marriage legislation at a furious clip.  Since the Baehr decision, 41 states have passed laws or adopted constitutional provisions defining marriage as an institution between a man and a woman.  In fact, in the 28 states where anti-gay marriage measures were put on the ballot, voters approved them in all 28.  (The only even partial loss occurred in Arizona in 2006, when a proposition that would have banned both gay marriage and civil unions was narrowly rejected.)

In 2003, however, a state Supreme Court ruling made Massachusetts the first state to recognize a right to marry for gays and lesbians.  Since then, Connecticut, Iowa, New Hampshire, New York and Vermont have also legalized same-sex marriage (as well as Washington, DC and a handful of Native American tribes).  Another 12 states recognize same-sex civil unions.

At the same time, public support for gay marriage has steadily increased — shifting faster than for nearly any other social issue in recent history.  “The first time we asked about gay marriage [using the current wording] was in 1996, and 27 percent said it should be valid,” said Dr. Frank Newport, the Editor-in-Chief of Gallup, a widely respected public opinion monitor.  “The percentage that said yes, it should be valid, gradually increased… In 2011, it burst through the fifty percent barrier and we had 53 percent who said yes.”

And the public’s views have been evolving — to use President Obama’s words — on more issues than just gay marriage.  “As recently as 1987, we found only a third [of Americans interviewed] thought gay and lesbian relations should even be legal,” Newport added.  “And now that’s all the way up to 63 percent.”

Experts posit a variety of reasons for the public’s dramatic shift on gay rights, but chief among them is the more left-leaning social views of younger Americans.  According to Dr. Patrick Egan, a scholar of gay rights and public opinion, “Even young people who are conservative on a number of what we would call moral issues such as abortion are nevertheless taking liberal positions on issues with regard to gay rights.  So that suggests that unlike an issue like abortion or school prayer, more and more people are viewing gay rights through the lens of equality rather than morality.”

And not only are they shifting on the issue, but they are shifting dramatically.  “If young people are a little bit more liberal than their parents, then as population changes over time, you get a slow trend towards liberalism,” agreed Dr. Laura Stoker, a University of California, Berkeley expert on the development of political beliefs and opinions.  “But on gay rights, the difference between young people and their elders is massive.”

Indeed, the ground could shift even more come November.  Gay marriage legalization is on the ballot in Maine, Maryland and Washington — polls have shown the initiative to be favored in all three states — while a Constitutional amendment defining marriage as a union between a man and a woman is polling neck-and-neck in Minnesota.

Pro-traditional marriage groups, like the National Organization for Marriage (NOM), dismiss the competiveness of gay marriage ballot initiatives.  “Every state to vote on marriage has decided to define marriage as the union of one man and one woman,” said NOM President Brain Brown in a statement earlier this year.  “This includes deep blue states like California, Wisconsin and Maine.”

Gay marriage advocates, however, reject the assertion, pointing to the rapid shift in public opinion and recent lower court victories.  “We’ve already won a majority of the American people.  We’ve overcome the barrier of getting courts to rule in favor of the freedom to marry,” said Evan Wolfson, the executive director of Freedom to Marry, a national gay rights organization.  “The last remaining barrier now is to show we can win an up-or-down vote on the popular ballot, and that’s the top goal we set for ourselves for the remaining part of this year.”


Prior to the Court’s monumental decision in the Obamacare case, it was widely assumed that the deciding vote in any gay marriage case would be Justice Anthony Kennedy.  Kennedy wrote the majority opinion in the Court’s two most recent gay rights cases, Romer v. Evans (1996), which blessed laws protecting homosexuals from discrimination, and Lawrence v. Texas (2003), which eliminated the nation’s last remaining anti-sodomy laws.  Moreover, Kennedy is widely seen as the body’s perennial swing vote.

Kennedy, 75, has sided with the Court’s conservative wing on a host of landmark decisions — including Bush v. Gore and Citizens United — but does not wear the culture warrior label nearly as comfortably as some of his colleagues.  He is perhaps best known for his opinion in Planned Parenthood v. Casey, which reaffirmed the Court’s Roe v. Wade decision, and his Lawrence opinion, which so reviled Justice Antonin Scalia that his dissent accused Kennedy of having “signed on to the so-called homosexual agenda.”

“Kennedy is the tipping point on gay rights on the Court,” said Tom Goldstein, a prodigious Supreme Court litigator.  Neil Siegel, a Duke Law School expert on political and constitutional law, agreed.  “One way or another,” he said, “Justice Kennedy is going to be in the majority.”

But Chief Justice John Roberts’ decision to uphold the healthcare law’s individual mandate — coupled with Kennedy’s withering attack on the government’s position — has undeniably recast the die.

Roberts joined the Court after both Romer and Lawrence, and has never written a significant opinion with regard to gay rights.  Since his 2005 appointment to the Court, Roberts has been a leader of the Court’s conservative wing, authoring opinions on divisive issues such as privacy and free speech.  But there is some evidence that Roberts shies away from the contempt with which Scalia, for example, views the constitutionality of gay marriage.  In 1996, Roberts’ law firm worked pro bono on the Romer case and Roberts personally helped prepare lawyers making oral arguments that argued in favor of equal protection for homosexuals.

Additionally, it is widely believed that Roberts, 57, cares a great deal about the image and legacy of the Supreme Court.  “Roberts quite explicitly has voiced concerns about the Court’s institutional position, its long-term legitimacy, its place in the Constitutional system,” said Siegel.  And considering that the judiciary is by far the least known of the government’s three branches — a CBS/Vanity Fair survey released shortly after the healthcare decision found that 60 percent of Americans could not correctly answer that nine justices sit on the Court — an issue as prominent as gay marriage will likely play a disproportionate role in coloring the public’s opinion of the Court.

Although most experts believe that the Justices’ decisions are primarily based on the law, many legal scholars assert that Roberts’ concern for the Court’s legacy plays at least some part in his decision-making process.

“Based on everything I’ve read and studied, the conclusion is inescapable that at least some part of his thinking was to factor in the political atmospherics of any particular decision,” said Richard Socarides, the former Clinton advisor, on the healthcare decision.  “I think Roberts is concerned with how, institutionally, the Court is viewed and how he’ll be viewed in a historical context.”

Socarides continued, “If the Court decides to take the Proposition 8 case and rules that there is a federal Constitutional right to same-sex marriage, as the plaintiffs argue, it would be huge.”


Many liberals, however, fret that the Chief Justice’s judgment in the healthcare case will inoculate him against charges of overt partisanship in other controversial rulings, like the gay marriage cases.

As legal analyst Jeffrey Rosen wrote in July, “[Roberts] has now increased his political capital that will allow him to continue to move the Court in a conservative direction in cases involving affirmative action and the Voting Rights Act, both of which he may well strike down next year by 5-4 votes.  Marshall achieved a similar act of judicial jujitsu in Marbury v. Madison, when he refused to confront President Jefferson over a question of executive privilege but laid the groundwork for expanding judicial power in the future.”

Goldstein, the prominent Supreme Court advocate, acknowledged that Rosen’s proposition was “certainly one of the conspiracy theories you hear on the left — that Roberts upholds healthcare, which gives him a huge amount of political capital to strike down all sort of things that conservatives hate and liberals like, while insulating himself from charges of partisanship.”

“Bu that’s a very, very cynical, political view of a judge,” Goldstein added.  “It’s a little much for me to think that is what’s going on.”

Nevertheless, the gay marriage cases are far from the Court’s only important considerations this term.  Fisher v. University of Texas, for example, concerns the college’s affirmative action admission policy, and could have lasting national implications.  Both the District Court and a three-judge panel from the Fifth Circuit ruled in favor of the University, but many observers expect the high Court to reverse these rulings, essentially disqualifying race as a factor in university admissions policies.

Other significant cases the Court could consider include Shelby County, Alabama v. Holder, which challenges the government’s continued use of the central enforcement provision of the Voting Rights Act of 1965, and Personhood Oklahoma v. Barber, which has already been granted certiorari and compels the Court to reexamine the always-salient issue of abortion.  Numerous criminal rights and business-related cases will likely appear on the Court’s docket this term as well.


Predicting how the Court will rule in any case is always difficult; with an issue as sensitive as gay marriage, it is a guess at best.  The comfortably life-tenured Justices have free reign in their Constitutional interpretations and must weigh a variety of factors — legal and otherwise.

“Obviously the Court looks first to the law, but in deciding these cases, which are so culturally and societally significant, they look to where the country is and what the country is ready for,” said Socarides.  “They probably try not to get too far ahead of public opinion, but I don’t think they want to be lagging way behind either.  And that’s what makes this moment and these cases so interesting.”

Legal experts are characteristically divided along ideological lines, with left-leaning scholars and analysts arguing that the Court will likely strike down parts of DOMA or Proposition 8 and their right-leaning counterparts maintaining the opposite.  Kennedy’s moderation on gay rights issues, as well as Roberts’ surprising healthcare ruling, are promising bellwethers for pro-gay marriage advocates.  But Roberts has repeatedly asserted his belief that it is not the Court’s job to effect social change, and is famously wary of broad, sweeping decisions.  Moreover, the Court as a whole has moved in a decidedly conservative direction since Roberts has become Chief Justice, muddying the issue’s already opaque waters.

Yet perhaps an even more complicated question is how to gauge the public’s reaction to a Supreme Court ruling affirming or striking down limits on gay marriage.

“Even if the Supreme Court makes a decision, what the public is going to get is all the commentary from the left and the right on the decision.  So the decision itself is not going to move people,” said Stoker, the Berkeley public opinion expert.

Additionally, a Court ruling can certainly have unforeseen consequences, as demonstrated by the Court’s last major gay rights decision.  “After Lawrence vs. Texas, public opinion actually moved in the opposite direction of the Supreme Court’s ruling for the next several years,” said Egan.  “So it’s not inconceivable that a ruling in either direction on Proposition 8 could affect public opinion, but it’s a little difficult to foresee what direction public opinion would move in response.”

Stoker agreed, pointing out that shifts in public opinion thanks to a Court ruling are even less likely with issues as culturally significant as gay marriage.  “Do I think the Court can change people’s opinions on basic issues that are tied to religion and morality?” she asked.  “I doubt it.  Public opinion is really not easily moved and certainly not by something as distant from people as a political ruling.  Think about Brown v. Board of Education.  Did that change attitudes?  Uh-uh.  The civil rights movement changed attitudes and mostly the change occurred generationally.  We saw a change in racial attitudes not caused by Brown v. Board of Education, but tied to the entire set of civil rights activities that were taking place in the country.”


This November, voters will decide which political party to entrust control of the executive and legislative branches of government.  But control of the judicial branch may also hang in the balance.  Four Supreme Court justices will begin the next Presidential term in their seventies, meaning that the direction of the Court could be radically reshaped by whoever occupies the White House come January.

“We never know who will retire when or who will get sick, but the importance of the cases this term reminds us how important it is [who] the President is,” said Socarides.

For now, however, gay rights advocates are pursuing victories at the ballot box — attainable for the first time thanks to the dramatic shift in public opinion — as well as in the courts.  Said Wolfson, who is considered by many to be the father of the gay marriage movement, “While I understand the desire to speculate about what a given Justice is going to do, I think the real key is to focus on what we can control, which is making the case outside the Court.  And the best way to do that is to continue winning more states and continue winning over more hearts and minds, all of which creates the climate that enables the Court to do the right thing.”


Eric Stern is a sophomore in Pierson College.


Published by Eric Stern

Eric Stern, from Pittsburgh, Pennsylvania, is Editor-in-Chief of The Politic.

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