Perry v. Brown: What Could have Been

-- By AjGarcia - 15 Feb 2012

Introduction

In this past two months, we've witnessed significant progress in marriage equality, with legislative victories in Washington, New Jersey, and Maryland and the Ninth Circuit's decision in Perry v. Brown. A common concern amongst gay marriage advocates is deciding upon the most efficient and effective basis for achieving marriage equality and preserving it: whether it should be through referendum, the courts, or through our legislative bodies. I contend that while a holistic approach is necessary to reverse discriminatory attitudes, my immediate concern, as a gay man, is not so much what heterosexuals think of the morality and legality of my ability to marry the person I love, but instead with my capacity to just do it. In light of the public's support of same-sex marriage and the history lessons taught to us by the Warren Court's precedent-setting opinions, I believe the federal courts today could successfully strike down bans on gay marriage and DOMA without losing credibility, respect, or authority.

How Much Longer Can We Wait

Government officials, like Chris Christie, and advocates on both sides of the marriage equality issue often claim that as a democracy, the determination of who can get married belongs in the hands of the public. In reference to Brown v. Board, one could argue that actual integration of school districts did not happen until attitudes of the oppressors transformed--and we should wait for this to happen with respect to gay marriage. Yet, we cannot and should not wait any longer. Chris Christie forgets that the cost of changing the public's mind came at the expense of dignity, respect, and lives of African-Americans and their supporters during the Civil Rights Era. But what is the alternative? What power do the courts actually have in reversing the public's opinion about a minority? In class we discussed how the law is not as powerful as the social norms that manage our daily interactions. However, gay marriage offers the federal courts the opportunity to change this norm and its reach entirely. But some ask, at what expense could this come to the judiciary as an institution?

The Possible Risks Assumed by the Judiciary by Ruling For Marriage Equality

I agree that is wise to be concerned about using the courts to implement laws that are disfavored by a large portion of the public. The judiciary's authority and credibility could be significantly undermined by such a holding--leading the American population to divest trust in the federal courts' ability to decide important issues fairly. Worse, the public could come to view the court as a moot institution, and without this respect, the federal courts would be left powerless; the federal courts cannot summon an army or interfere with state funding.

Evidence of Immediate Change in the Lives of the Oppressed

Yet, this puerile view of federal courts insults the history and reputation they have built. The Warren Court illustrated that it is possible to look past legal formalism riddled with logic for the sake of logic and take a step back to consider the prudential implications its decisions could have--especially with regard to minority classes that are unable to convey their political message to the majority absent protection. From Miranda to Griswold to Gideon to New York Times v. Sullivan amongst many other precedent-setting opinions, the Court demonstrated that it could lead and support a minority that was not in the position to support itself, by relying on its "judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment . . . and yet the very root and nerve of the whole proceeding." At this point in history, marriage equality may be controversial, but it is not outrageous, dated, or unsupported--unlike arguments from anti-marriage advocates. A federal court decision would be bold but not radical, because a ban on gay marriage "serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians . . . reclassify their relationships and families as inferior to those of opposite-sex couples."

Furthermore, the opinions in Lawrence v. Texas and Loving v. Virginia, along with their short-term and long-term implications, suggest that the courts' decisions can have a drastic impact on the lives that the law was aimed towards, even if it did not necessarily change the mind of the public directly. Unlike in Brown, the courts didn't need school boards and racist local governments to agree with the court's decision before its effect was felt. Gay men could start having sex whenever they wanted in the privacy of their own homes; a black man could marry a white woman. As unpopular as it may be to other people, the holdings actually altered the conduct minorities could or could not do.

Conclusion

I semi-applaud the Ninth Circuit for a strategic and narrow decision that discourages the Supreme Court from reviewing Perry v. Brown by finding the act of taking the right of marriage away from gay couples without reason to be the basis for unconstitutionality versus the ban on gay marriage itself--limiting the decision's applicability to other states, while still allowing gay marriage in California. Ultimately, however, the most helpful weapon in striking down all gay marriage bans would be a precedent-setting decision declaring one state's ban on same-sex marriage unconstitutional on its face. Fearful of the conservative branch of the Supreme Court, I do appreciate the Ninth Circuit's caution in ensuring a move is not made too hastily that might lead to a crippling blow to marriage equality.

Yet, in light of these arguments I've put forward, I contend that the federal courts are in a position to ban anti-gay marriage laws without losing respect, authority, and credibility so many fear it could.

This seems to me a very puzzling draft. I don't understand the history or sociology at all. Even when Bowers v. Hardwicke was decided, let alone at the time of the decision in Lawrence, criminal sodomy prosecutions had essentially ceased in the US; similarly, when Loving v. Virginia was decided, although most of the States of the former Confederacy prohibited marriages between black and white people, such marriages were elsewhere recognized, and any such couple in the US had practical access to legal marriage on equal terms with everyone else.

But the Court's decision in Brown v. Board of Education was by no means a decision made after the reality of social change had occurred, as Cooper v. Aaron and the rest of the history of "massive resistance" showed. So your historical interpretations seem to me more or less the reverse of a natural understanding of what happened, in the relationship between judicial articulation and the modification of societal mores.

I don't understand the analytical posture of the draft, either. There isn't anyone who seriously believes, I think, that the courts endanger their authority in deciding that equal protection requires the issuance of a marriage license to any pair of competent, unmarried citizens who want one. And a Supreme Court empowered to decide the constitutionality of federal statutes generally has as much authority to determine the constitutionality of DOMA as of the ACA. I don't think any lawyer would seriously argue otherwise. Treating political posturing or radio salesmanship as analytical argument is a category mistake. And not even in making that mistake are you analytically precise: Governor Christie, for example, is engaged in the even more complex contortion required to explain why he thinks making marriage law should not be the province of the legislature, merely because his has put him to the inconvenience of signing a law that would doom his present in the national Republican party. His absurdities have nothing to do with the courts at all, the matter having moved even further out of his hands.

Nor do I understand the "how long must we wait" language, at all. In the first place, any couple wishing to get married in the United States may now do so, regardless of sexual composition, cheaply and swiftly. In the second place, marriage itself is a vestigial institution of little practical importance. I've managed to live a long heterosexual life without the slightest need for it, and I don't foresee any likelihood that my mother and her partner, to take another example within my own family, are likely to require it even if California law finally seesaws back to the point at which they could do so. Nor my youngest brother and his (female) partner, whose union has lasted more than twenty years now, and bids fair to last thirty more. In the third place, it is apparent that the animus against marriages between men or between women is generationally bound to those born in the first three quarters of the twentieth century, and will disappear year by year now, as all our sociography shows. The world's hard problems are the ones which involve something important, for which there are no evasions or workarounds,and which aren't steadily and remorselessly solving themselves.

Nonetheless, we have two national parties, and one will not appoint or confirm Supreme Court justices who are committed to requiring nationwide recognition of "same-sex marriages." We must therefore wait, to be precise about it, until the Democrats win enough national elections to appoint a majority of the Court, or until the support of culturally-conservative religious people born before 1975 is no longer of significant interest to the Republicans.

I don't really know how to improve this draft, because I don't know what it's underlying ambition really is. Are you writing an essay in favor of allowing "same-sex marriage"? As you can see around you every day, with a clarity that should take some of the bite out of the remaining bigotries, the culture is so far already with you, that the effort is almost cliché. But your introduction both claims this is somehow about the strategy for achieving legal equality, which seems evidently untrue and is never followed up, and also somehow about whether the courts are doing less than they should for unfounded reasons of concern for their authority, which seems to me equally insubstantial. I think the most promising approach is to quarry out from the various surface phenomena here the idea of your own that you want to add to the discussion. Then you can put it in a couple of clear sentences at the beginning, illustrate the new points for the reader, draw out some implications, and address significant objections.

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