Perry v. Brown: What Could have Been

-- By AjGarcia - 15 Feb 2012

Introduction

February bore witness to 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 by referendum, by 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 about what heterosexuals think of the morality and legality of my ability to marry the person I love, but instead with my ability 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 fear of 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.

Examining Our Respect For the Court as an Institution

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."

Evidence of Immediate Change in the Lives of the Oppressed

For example, 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 get on the same page before the change in the law had the effect that was intended. 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 in the moment.

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--leading LGBTQ individuals to have a life filled with hope, dignity, and equality while sacrificing nothing in return to our heterosexual counterparts. (926 words)

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