Monday, December 10, 2012

NYT: Same-Sex Issue Pushes Justices Into Overdrive

The New York Times

December 9, 2012

Same-Sex Issue Pushes Justices Into Overdrive


WASHINGTON — Life moves fast these days, and so does the law.
In the civil rights era, the Supreme Court waited decades to weigh in on interracial marriage. On Friday, by contrast, the court did not hesitate to jump into the middle of one of the most important social controversies of the day, agreeing to hear two cases on same-sex marriage.
By taking both, the court gave itself the chance to issue a sweeping ruling that would cast aside bans on same-sex marriage nationwide. But the speed with which the court moved also raised the possibility of a split decision, one that would provide federal benefits to same-sex couples married in states that allow such unions but would permit other states to forbid gay and lesbian couples from marrying.
Gay rights advocates said they were optimistic that the time had come for marriage equality across the nation.
“We are at a major turning point in the arc of gay and lesbian rights,” said Suzanne B. Goldberg, a law professor at Columbia. “The cases are moving fast, and the country is as well.”
There has indeed been a rapid shift in public opinion, with a majority of Americans now saying they support same-sex marriage. With last month’s elections, nine states and the District of Columbia now allow such unions.
Still, the Supreme Court’s move came just eight years after Massachusetts became the first state to permit gay and lesbian couples to marry and just four years after voters in California rejected a ruling of their Supreme Court allowing same-sex marriages there.
The cautious move for the justices would have been to hear just one of the cases they were asked to consider, the one posing the relatively modest question of whether the federal government can discriminate against same-sex couples married in the places that allow such unions.
But the court went big on Friday, also taking the case from California filed by Theodore B. Olson and David Boies. Their case seeks to establish a constitutional right to same-sex marriage in the remaining states, almost all of which have laws or constitutional provisions prohibiting it.
“We are now literally within months,” Mr. Boies said Friday, “of getting a final resolution of this case that began three and a half years ago.”
The speed with which the court is moving has some gay rights advocates bracing for a split decision. The court could strike down the federal law, the Defense of Marriage Act, saying that the meaning of marriage is a matter for the states to decide. At the same time, it could reject the idea that the Constitution requires states to allow same-sex marriage, saying that the meaning of marriage is a matter for the states to decide.
That may be why supporters of traditional marriage sounded pretty cheerful on Friday.
“I’m ecstatic,” said Brian S. Brown, the president of the National Organization for Marriage. “Taking both cases at the same time exposes the hypocrisy on the other side.”
It is entirely possible, then, that the votes to grant review in the California case came from the court’s more conservative justices. They may have calculated that they had a shot at capturing the decisive vote of the member of the court at its ideological center, Justice Anthony M. Kennedy, at least in the California case.
But while the court is moving fast, it has left itself plenty of offramps. Officials in California refused to defend Proposition 8, the voter initiative that banned same-sex marriage in the state, or to appeal the lower-court decisions invalidating it. They left those tasks to proponents of the initiative.
On Friday, the justices directed the parties to address the issue of whether the proponents of banning same-sex marriage had suffered the sort of direct injury that gave them standing to appeal. If the answer is no, the trial court decision requiring the state to allow same-sex marriage would stand, but its sweep in the short term could be limited to two California counties or perhaps even to just the couples who brought the case.
The justices could also affirm a California-only rationale relied on by the appeals court. That court said Proposition 8 must fall because voters had withdrawn a constitutional right from gay men and lesbians. Whether the establishment of such a right was required by the Constitution in the first place, it said, was a question for another day.
Finally, the justices could pursue what Kenji Yoshino, a law professor at New York University, calls the “eight-state solution,” one that would affect California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. Those states give gay and lesbian couples all the benefits and burdens of marriage but withhold the name “marriage.” That distinction, the court could rule, violates equal protection principles.
Such a ruling, though, could have “perverse effects,” Professor Yoshino says. States prepared to enact laws allowing gay and lesbian couples to join in civil unions — marriages in everything but name — might hesitate, for fear of being forced by the courts to adopt same-sex marriage if they do.
But the eight-state solution would also be unlikely to give rise to the sort of reaction that imposing same-sex marriage on, say, Mississippi would. However the court rules in the California case, its very decision to consider it is a change from the caution of an earlier era.
In private correspondence in 1957, Justice Felix Frankfurter said the court was doing all it could to avoid hearing cases that would require giving the nation an answer about whether bans on interracial marriage — anti-miscegenation laws, in the parlance of the day — were constitutional.
“We twice shunted it away,” Justice Frankfurter wrote to Judge Learned Hand, “and I pray we will be able to do it again without being too brazenly evasive.”
Judge Hand responded that “I don’t see how you lads can duck it.”
But Justice Frankfurter was unpersuaded.
“I shall work, within the limits of judicial decency,” he wrote, “to put off decision on miscegenation as long as I can.”
The Supreme Court did not strike down laws banning interracial marriage until 1967, in Loving v. Virginia, when 16 states still had them on the books. That was almost two decades after the California Supreme Court in 1948 struck down a law making illegal “all marriages of white persons with Negroes” in Perez v. Sharp.
It has been just four years since the California Supreme Court, citing Perez, struck down two state laws limiting marriage to a man and a woman.
“We are in the midst of a major social change,” Justice Carol A. Corrigan wrote in dissent. She said she supported allowing “our gay and lesbian neighbors” to marry. But she said change must come from the political process, not the courts.
“Societies seldom make such changes smoothly,” Justice Corrigan wrote. “For some the process is frustratingly slow. For others it is jarringly fast.”