Two cases regarding gay marriage, Hollingsworth v. Perry (challenging California’s Proposition 8) and United States v. Windsor (challenging the Defense of Marriage Act), were argued this term in front of the Supreme Court. The Justices are expected to reach a ruling by July 2013.
Today 11 states have legalized same-sex marriage, with Massachusetts leading the way with the 2003 Goodridge v. Department of Public Health decision, which led to much public debate. In the Summer 2004 issue of The Harvard Law School Bulletin, two HLS constitutional law experts, Laurence Tribe ’66 and Richard Parker ’70, shared their views on the Goodridge decision.
In light of recent oral arguments before the Supreme Court in Hollingsworth v. Perry and United States v. Windsor, the Bulletin asked Professor Tribe to offer some predictions for how the two cases might be decided. He replied as follows:
I’ve said and written a lot about Bowers, Romer, Lawrence, Goodridge, Windsor, and Perry – both in briefs and in op-eds and in blog posts and in law review articles (a couple of them co-authored with Joshua Matz ‘12) – and am in the process of writing a chapter on gay rights and marriage equality for a coauthored book (with Joshua Matz ‘12) that’s due out next year.
In brief, I continue to disagree strongly with those who criticize the SJC’s Goodridge decision as unfortunately subverting the democratic process. On the contrary, I believe that the Goodridge decision unleashed a healthy political process across the country that has on the whole been profoundly democratic, in which people have had a chance to see for themselves that recognizing marriage equality wouldn’t lead the skies to fall, and I believe that this process has happily led to the rapid sea change in the culture and law surrounding this crucial issue. But for Goodridge, I think that this rapid democratic shift toward marriage equality would have been much less likely, mostly because it would have been easier for people to continue arguing, ignorantly, that recognizing same-sex marriage would have terribly untoward consequences for society.
Apart from that prognosis, I should add that, in my view, the issue of marriage equality is one bearing deeply on individual human rights and that the invocation of democratic and specifically majoritarian ideals to insist that it be resolved by majoritarian processes makes no more moral sense with respect to gay rights than it would have made with respect to issues of racial equality in the 1950s and 1960s.
Regarding the pair of cases currently pending in the Supreme Court, my hunch – and it is only that – is that the Court will narrowly conclude that the DOMA [Defense of Marriage Act] issue is properly before SCOTUS on the merits notwithstanding the solid reasons to doubt that BLAG [Bipartisan Legal Advisory Group of the U.S. House of Representatives] is a proper representative of Congress and that the Court will hold DOMA’s Sec. 3 unconstitutional by a vote of 5-4, with Justice Kennedy relying heavily on the kinds of federalism considerations that Judge Boudin found persuasive in CA1 [U.S. Court of Appeals for the First Circuit] but with the more liberal four justices relying squarely on the equality component of fifth amendment due process.
As to Hollingsworth, however, I doubt that the Court will conclude that Chuck Cooper and the other private proponents of Prop 8, all lacking a fiduciary duty to California, have Art. III standing to defend it on the merits in the Supreme Court (despite what the state’s highest court concluded) and will dismiss that case on standing grounds, leaving in place Judge Walker’s statewide injunction against Prop 8 but setting no nationwide precedent. Alternatively, despite the Rule of Four, I wouldn’t be too surprised to see the Court dismiss cert as improvidently granted, leaving CA9’s [U.S. Court of Appeals for the Ninth Circuit] decision in place but again setting no nationwide precedent.
I believe that it is entirely appropriate, in the extraordinary circumstances presented both by DOMA and by Prop 8, for the executive branch, state or federal, to enforce the laws at issue until struck down by SCOTUS but to decline to defend those laws on the constitutional merits. I do nonetheless think that California should have made provision for some suitable official defense of Prop 8 in those circumstances in order to preserve the integrity of its initiative process and that the Obama administration should have arranged for the appointment of a special counsel, akin to the independent counsels appointed on earlier occasions, to defend Sec. 3 of DOMA in the federal courts once the President concluded that the Attorney General and Solicitor General should not do so.
BLAG is not, in my view, a party with standing to defend DOMA on behalf of Congress, although I’m not ready to suggest that Congress was powerless as a bicameral body to appoint a suitable defender of the measure despite the fact that no institutional prerogative of Congress akin to that involved in INS v. Chadha was at stake.
In these circumstances, especially because I’m immersed in work on my forthcoming book, I just can’t take time out to specifically address the questions below, each one of which, to be answered adequately, would take lots of time and a bunch of pages.
On the one question of just when a ban on same-sex marriage “became” unconstitutional, however, my answer would be that, from a rather formal perspective, it was unconstitutional from the moment the Fourteenth Amendment was ratified although, from a more evolutionary and thus realistic perspective, it is still in the process of becoming unconstitutional in the sense that the constitutional status of challenged action is a function of an evolving partly political/cultural and partly legal development rather than something akin to the “fact of the matter.” Asking when this kind of ban “became” unconstitutional is like asking when the ban on interracial marriage “became” unconstitutional: the answer might be said to be 1967, when Loving v. Virginia was decided, but it also might be said to be 1868, when the Fourteenth Amendment was ratified. The question isn’t of the same metaphysical character as, e.g., the question of when the oceans of the earth were formed, or when the big bang occurred, or when George W. Bush became President of the United States.