Santa Clara University

Closing Arguments

Some Caution on Gay Marriage

By Bradley W. Joondeph, Associate Professor, SCU School Of Law

Across America, numerous lawsuits have been filed in the past year seeking the same legal status for same-sex marriages as for marriages between a man and a woman. Although these cases raise a host of interesting legal issues, the biggest looming question is whether prohibitions on same-sex marriage violate the federal constitution.

Proponents of gay marriage make two arguments. First, limiting marriage to heterosexual couples is unlawful discrimination that violates of the Equal Protection Clause of the Fourteenth Amendment. Second, prohibiting gay couples from marrying violates their right to marry, a right recognized as “fundamental” by the Supreme Court.

What would happen if the Supreme Court decided such a case in the next few years? I’m confident that the  justices would hold that states can refuse to recognize gay marriages.

First, in the Court’s 2003 decision striking down a Texas law prohibiting gay sex, Lawrence v. Texas, the justices were careful to reserve the question of gay marriage. Writing for the Court, Justice Kennedy stated that Lawrence did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” In her separate opinion, Justice O’Connor wrote that, while Texas lacked sufficient reasons to criminalize sodomy, “other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”

Moreover, the relevant sources of law are largely indeterminate. The Constitution’s open-ended guarantees to equal protection and due process, as well as the various decisions interpreting them, do not supply clear answers. There is plenty of room for the justices to decide the case either way.

If the law is unclear, why am I confident of the outcome? Partly it is knowing something about the justices and their ideological commitments. But more it is recognizing that, on broad issues of social policy, the Court rarely issues opinions that flout strong public opinion.

The vision of the Supreme Court as a “counter-majoritarian hero” that defends the rights of unpopular minorities is more myth than reality. History shows the Court is more of a follower than a leader. Consider the most analogous case to gay marriage, Loving v. Virginia, which invalidated state laws banning interracial marriages. The Court did not decide Loving until 1967, thirteen years after Brown v. Board of Education held that segregation was unconstitutional. The Court was too fearful of political backlash to address the even touchier subject of miscegenation.

Today, prevailing public opinion in the United States is strongly against gay marriage. According to a February Gallup poll, 63 percent of Americans oppose making same-sex marriages legally valid, while only 33 percent approve. More recently, Missouri voters approved a state constitutional amendment prohibiting same-sex marriage by a margin of 71 percent to 29 percent. In the face of such opposition, it seems unlikely that the Court would hold that every state is required to recognize gay marriage.

The proponents of gay marriage might therefore be well advised to avoid raising federal constitutional claims.  If they ground their lawsuits exclusively in state law, their cases cannot go to the Supreme Court, thus avoiding the risk of creating federal precedent that could set back the cause of marriage equality substantially.

So far, litigants have largely adhered to this strategy. The Massachusetts plaintiffs in the Goodridge case prevailed purely on state constitutional grounds; San Francisco Mayor Gavin Newsom B.A. ’89 has invoked principally California law to defend the city’s issuance of same-sex marriage licenses; and the recent decision in Seattle was based exclusively on the Washington state constitution.

Proponents of gay marriage should also think carefully about the broader political context. Lawsuits are a powerful tool to accomplish certain political objectives. But courts are limited in their capacity to produce broad social change, and judicial decisions often produce unintended consequences. On this issue, the worst possible result would be a federal constitutional amendment forbidding states from recognizing same-sex marriages. Unpopular judicial decisions seem more likely to be a catalyst for such an amendment than the actions of politically accountable officials.

In short, proponents of gay marriage should be cautious about what can be accomplished in the courts. Same-sex marriage will not be a reality in America until most Americans are ready to support it.