Could impending Prop 8 decision doom same-sex marriage?

Supporters of same-sex marriage are understandably giddy with excitement over the impending decision from U.S. District Judge Vaughn Walker. There’s pretty much universal agreement that the liberal-conservative tag team of David Boies and Ted Olson made an excellent and compelling argument for why the voter-approved Proposition 8 in California violates the U.S. Constitution’s guarantees of due process and equal protection. But the prospect of victory hassome concerned about what may follow.

Perry v. Schwarzenegger is not the only marriage equality case out there. Folks have their eyes on one out of Massachusetts. But no matter how Judge Walker rules in the Prop 8 suit, which is expected sometime this summer, the case is certain to be appealed to the federal Ninth Circuit and then to the Supreme Court. And therein lies the danger. If the current ideological makeup of the court doesn't change by then, the victory that could come at the hands of Judge Walker could turn into a defeat in the Roberts Court. And even if the justices put ideology aside, it might still be reluctant to impose its will on the country.

Jonathan Rauch wrote an excellent piece for the New York Times last Saturday that also expressed concern about same-sex marriage and the high court. The foundation of his argument was something Supreme Court nominee Elena Kagan said cast a spotlight on that latter point. “The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals," she said. "But the court must also recognize the limits on itself and respect the choices made by the American people.”

To understand the importance of that last sentence we need to go back to the 1986 ruling in Bowers v. Hardwick. This case involved two consenting adult gay men who were arrested for violating Georgia’s anti-sodomy law. Michael Hardwick challenged the law’s constitutionality in federal court. When the case reached the Supreme Court, the question before it was whether consensual sodomy by homosexuals was a fundamental right guaranteed by the Constitution. The answer was no in a 5-4 decision written by Justice Byron R. White. This is a key paragraph in the majority opinion to file away for a moment.

Sodomy was a criminal offense at common law, and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

The constitutionality of sodomy laws returned 17 years later in Lawrence v. Texas. The question before the Supreme Court in 2003 was “the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.” The 6-3 decision, which overturned Bowers v. Hardwick and invalidated anti-sodomy laws across the country, was written by Justice Anthony Kennedy. His majority opinion remains heralded as the most pro-gay decision to come from the high court. In a key rebuttal to Bowers, Kennedy wrote:

In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.

The historical trend between the two cases is obvious. In addition to recognizing the violation of equal protection and due process guaranteed under the Fourteenth Amendment, the Court in the Lawrence case also noted that society was moving away from criminalizing the consensual intimate relationships of same-sex couples. Unfortunately, the same cannot be said of society’s acceptance of marriage equality.

Yes, there has been progress, much of it within the last 10 years. Same-sex couples are able to legally wed in five states (Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire) and, most recently, the District of Columbia. Maryland, Rhode Island and New York legally recognize marriages performed in other jurisdictions. But in that same period, 30 states passed constitutional amendments or statutes that define marriage as being between one man and one woman. In fact, the Wisconsin Supreme Court ruled unanimously on June 30 to uphold that state’s constitutional ban on same-sex marriage and civil unions. Remember what Kagan said about the court recognizing the limits on itself and respecting “the choices made by the American people”? Given the current landscape, it would be astounding if the court overturned the will of the people as expressed through state constitutions, acts of the legislature and at the ballot box.

Here’s something else to consider. The Massachusetts Supreme Judicial Court ruling that ushered in marriage equality there in 2004 also kicked off a push to enshrine discrimination in the Constitution through an amendment banning same-sex marriage. It went nowhere then. I’m not so sure today. Two-thirds of the states -- 38 -- are needed to amend the U.S. Constitution. As I just mentioned 30 states have already done it on their own. Or look at it this way, 45 of the 50 states currently do not permit same-sex marriage.

Legally speaking, the kindling is there for a controlled blaze confined to California or an inferno that could stop the national march toward marriage equality in its tracks possibly for decades either through a constitutional amendment (extremely difficult, but not impossible) or, as Rauch put it, through an “aggressively dismissive ruling” from the Supreme Court. All that’s needed is a spark. Right now, Judge Walker is the man holding the matches.