Sixty years ago, lawyers from four states defending racial segregation before the Supreme Court urged justices to weigh history, tradition, judicial restraint, and the risk of social disruption as more important than the rights of black school children to educational equality. With courage and hard-won unanimity, the Supreme Court rejected those arguments and issued the now universally celebrated decision in Brown v. Board of Education (1954) that outlawed racial segregation in public education.
Lawyers representing four states will rise before the Supreme Court on Tuesday [April 28] to make similar arguments that history, tradition, judicial restraint, and the risk of social disruption outweigh the rights of same-sex couples to marriage equality. The arguments against equality today are no stronger than the arguments six decades ago, but the Roberts Court is all but certain to speak with divided voices even if, as expected, it strikes another blow for equal justice under law.
Three conservative justices Antonin Scalia, Clarence Thomas, and Samuel A.Alito Jr. are on record just two years ago in finding no constitutional right to marriage for same-sex couples. Those three, but significantly not Chief Justice John G. Roberts Jr., said as much when they dissented from the court’s decision in United States v. Windsor (2013) to strike down the Defense of Marriage Act’s ban on federal marital benefits for legally married same-sex couples.
The justices were divided in the school desegregation cases after an initial round of arguments in fall 1952. They came together only after a temporizing decision to ask for rearguments and the fortuitous appointment of a new chief justice, Earl Warren, to replace the ineffectual Fred Vinson after Vinson’s death in fall 1953. It is an unfavorable reflection on the current court that no one anticipates a possible change of mind from those three Windsor dissenters even after two-and-a-half hours of oral arguments and an outpouring of more than 140 friend-of-the-court briefs.
In the marriage cases, the four states Kentucky, Michigan, Ohio, and Tennessee and the religious and social conservative groups supporting them put history and tradition first and foremost in arguing against a ruling for the gay and lesbian couples. They say the court must defer to the “traditional definition of marriage” one man, one woman. The states in Brown made the same appeal to tradition in defending racially segregated schools.
The states today are, of course, correct that no U.S. jurisdiction recognized same-sex couples as legally married until Massachusetts adopted court-ordered marriage equality in 2004. In an amicus brief supporting the plaintiff couples, however, scholars on the history of marriage stress that marriage laws have changed over time to reflect changing views of the spouses’ respective roles and rights. And they note pointedly that interracial marriages were banned in many states until the Supreme Court decided in Loving v. Virginia (1967) to lay those anti-miscegenation laws to rest as a violation of a fundamental equal protection right to marriage.
The states’ judicial restraint arguments rest both on a narrow construction of constitutional text and a narrow view of judicial authority. The Fourteenth Amendment, they contend, was never intended to displace the states’ traditional authority over marriage. The states in Brown made the same argument in defending their prerogatives in education policy unsuccessfully. And Loving is precedent for the Fourteenth Amendment to override the states just the same on marriage policy.
The states argue in any event that the Fourteenth Amendment does not protect homosexuals as a class. As original intent, they are no doubt correct. Over time, however, the amendment has been recognized as limiting discrimination not only on the basis of race, but also, as notable examples, on the basis of sex and alienage. And the plaintiffs and several civil rights groups emphasize that gays and lesbians meet the established standards for recognition as a suspect class, including a history of discrimination and relative political powerlessness.
Very significantly, the Obama administration urges the court in its amicus brief to recognize sexual orientation for the first time as a protected classification. Solicitor General Donald Verrilli will be sharing argument time with the lawyer for the plaintiffs on Tuesday just as the Eisenhower administration argued for plaintiffs in Brown.
In the name of judicial restraint, the states are also urging the court now to let the marriage issue play out through the political process just as the states in Brown defended the rights of local self-government. But a brief filed by current and former officeholders from the four states notes that the court has rejected deference to the democratic process when laws disfavored minority groups.
As in Brown, the states or some of their supporting groups today are warning of dire consequences from a ruling to nationalize marriage rights for gay men and lesbians. They predict declining marriage rates among opposite-sex couples, increased incidence of out-of-wedlock births, increasing numbers of abortions, and reduced parental bonds with children in straight marriages. The arguments overlook that marriage rates fell and out-of-wedlock births rose long before same-sex marriage was being argued seriously in courts or in legislatures. And the assumptions that underlie the predictions are best described as preposterous.
The justices do not decide cases by comparing stacks of amicus briefs, of course, but the organizations backing the plaintiffs outnumber and far outweigh those siding with the states. Sixty years ago, the court met its equal-justice responsibility in Brown; the decision in the marriage cases is due by the end of June.