Constitution Check: Should gay Americans be afraid of the Supreme Court?

Lyle Denniston examines the apprehension that some same-sex couples may have as the Supreme Court nears a decision on gay marriage–and why the wait may be worth it in the long run for all parties involved.

The statement at issue:

“It is frightening to have our basic rights as citizens in the hands of just nine people, when four or five of them are deeply ambivalent, at best, about our very existence….My gut says that the next six months are going to be really hard.”

Don Romesburg, an associate professor at California’s Sonoma State University, in comments quoted in The New York Times on December 9 in an article about the reaction among gays and lesbians to the Supreme Court’s agreement to review constitutional issues over same-sex marriage.   Professor Romesburg is married to his gay partner, according to The Times.

We checked the Constitution, and…


Whether or not it is the best way, America has long accepted – usually without too much grumbling — that the Supreme Court will have a major, often decisive, role in determining whether constitutional rights exist, and how far a declared right might reach.   Anyone who has a strong personal interest in the outcome of a Supreme Court case dealing with rights is entitled, always, to be apprehensive.   Nothing is a sure thing in that field.

Among many of the nation’s gays and lesbians, the issue of marriage is as important as any other question affecting their roles in society.  Many of them, no less than other loving couples, regard marriage as a cherished institution and believe that being involved in such a deep and hopefully abiding commitment to each other can be a recognition of one’s social worth.

It is no wonder, then, that there has been a debate within gay rights organizations about when and how the pursuit of a right to marry should go forward, and what techniques should be used in such a campaign.   Until just this year’s elections, asking the voters at the state level to allow same-sex marriage was a doomed effort.  And asking the courts to recognize such a right, under the Constitution, has been a chancy proposition, too.

Lately, in both politics and in the courts, as well as in public opinion polling, there has been a beginning toward the acceptance of marriage equality.   To those who thought the time had come to press forward toward that goal, the recent results have been at least promising if not conclusive.

Now, however, the nine people whom Professor Romesburg is not sure he can trust have stepped in, and they do have the power to decide – perhaps even to decide, one way or the other, whether marriage equality will be established as a constitutional right for gays and lesbians, too.

The waiting, perhaps, will be “really hard.”

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

But there are ways to cope.  One of them is to have hope.  It is widely assumed that, when the final vote counting is done among the nine justices, the decisive vote may well be cast by Justice Anthony M. Kennedy.  More than any of his colleagues, Kennedy right now has the most clearly demonstrated voting record in favor of gay rights.  He was the author – enthusiastic and not apologetic, confident rather than insecure – in history’s two most important rulings by the court on personal freedom for homosexuals.

The first was in 1996, in the case of Romer v. Evans.  The ruling barred states from closing off the opportunity for homosexuals to seek protection for their rights from state and local governments.  The second was in 2003, in the case of Lawrence v. Texas, recognizing a constitutional right of privacy in the intimate relationship of homosexual partners in the privacy of their homes.   Whether those two rulings incline Kennedy’s mind and heart toward marriage equality remains to be seen.  But they do provide some reason for modest hope, since there are very likely four other justices who might well be expected to vote for such equality.

Another way to cope is that, perhaps, the court in the end will choose not to decide.  Both of the cases involve procedural issues that may well lead the justices to conclude that it is not yet time to reach ultimate conclusions.   Those who fear that there is too much risk in having the court decide now might be comforted if the issue gets put off for a while.

There is another way to abide the wait, and it is more action-oriented, going beyond merely keeping one’s fingers crossed for luck.   It is an option of citizen engagement in the coming exploration of constitutional principle.

The lawyers for the parties directly involved are not the only ones whose views will be considered by the nine justices when they take up the two cases they have promised to decide, one involving a state ban on same-sex marriage, the other involving a broad denial of federal benefits to same-sex couples who are already married under state laws.

The nation now has scores of organizations that are energetic and creative in promoting gay rights causes, and many of those predictably will be getting involved in the two cases before the justices.   They will do so in the role of “friends of the court,” or in the Latin phrase that the court uses, “amicus curiae.”   With cases as important as these two are, it is a virtual certainty that there will be a pile of written briefs filed by such organizations.   And those are organizations that depend, reliably, on hearing from their members on issues about which they care.

As this process unfolds, there will be several points at which the written materials submitted to the court make news, or otherwise will come into public view, so the citizenry can follow the process: who is making what arguments, how strong do those assertions seem, what chance do they have of persuading the nine justices, or at least five of them?   That is not an idle guessing-game: court cases are decided in considerable part because of the strengths, or weaknesses, of what the written briefs say.

Paying attention, keeping up, and making sure that one’s own voice is heard can make waiting perhaps a bit more tolerable.   And, when the outcome does emerge, it will then be possible to judge whether it was reached by a fair process.   The Constitution cannot guarantee much more than that.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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