Zachary Kramer: The Future of Same-Sex Marriage

Sunday, December 2, 2012

Zachary Kramer
Zachary Kramer

Associate Dean for Intellectual Life 
Professor of Law

The recent election marked a shift in the political battle over same-sex marriage. Four states held crucial votes about the legality of same-sex marriage. That a handful of states put same-sex marriage to a vote isn’t something new. In the last decade, same-sex marriage has been at the forefront of our political discourse. There have been 32 statewide referenda on same-sex marriage in the past 10 years. And opponents of same-sex marriage won every time.

That’s what makes 2012 an unusual year. For the first time in history, same-sex marriage prevailed at the ballot box. In Minnesota, voters rejected a proposed constitutional amendment banning same-sex marriage. And in Maine, Maryland, and Washington, voters approved laws recognizing same-sex marriage, all by comfortable margins. Add to the mix that, during the campaign, President Obama announced a shift in his views on the issue, saying that he thought that same-sex couples should be able to get married, a change in position that no doubt energized his base.

Here’s why this matters. Same-sex marriage is headed to the U.S. Supreme Court. There are four cert petitions before the Court dealing with same-sex marriage. The first involves the constitutionality of Proposition 8, a California ballot initiative that defined marriage for purposes of state law as a union between one man and one woman. The second and third involve constitutional challenges to the Defense of Marriage Act (DOMA), a 1996 law, signed by President Clinton, that adopted the one man/one woman definition of marriage for purposes of federal law. In both cases, the federal appeals courts struck down DOMA as violating the U.S. Constitution. The fourth case comes from Arizona. The issue in this case is the constitutionality of Arizona’s law limiting healthcare benefits to married couples, which in effect denies these benefits to same-sex couples, who cannot marry under state law.

By the time you read this, the U.S. Supreme Court will have decided whether it will hear any or all of these cases. I’m not going to make a prediction about what the Court will do. But I want to put the Court’s decision about whether to take these cases into a broader context about civil rights. After all, same-sex marriage is a civil rights issue, possibly even the civil rights issue of our time. At its core, the legal debate over same-sex marriage is fundamentally about what we as a society want the Constitution’s equality command to mean.

A way to think about the future of same-sex marriage litigation is to map it onto earlier examples where the Court weighed in on contentious social issues. For starters, take the Court’s involvement in race discrimination cases, in which the Court took a gradual approach to dismantling the patterns of segregation that were deeply embedded in our society. Although the Court handed down its landmark Brown v. Board decision in 1954, it was not until 1967, in Loving v. Virginia, that the Court ruled that states could not prohibit interracial marriage. In the 13 years between Brown and Loving, the country changed and attitudes about race shifted, thanks in large part to the Court’s decision in Brown, which proved to be a catalyst for changing the way Americans think about equality.

The abortion cases stand in stark contrast to the race discrimination cases. In its 1973 decision in Roe v. Wade, the Court adopted a more immediate approach to resolving a contentious social issue, striking down all state laws restricting abortion. The story of Roe is one of backlash. Not only did Roe launch the seemingly interminable Pro-Life/Pro-Choice debate—a debate that has practically come to define our national political discourse—but the Court has long since backed away from Roe’s central ruling, issuing a string of decisions that substantially limit the right protected in Roe.

Ultimately, the Court’s coming decision about same-sex marriage is not about substance. For now, the Court simply must decide when it is going to decide the issue. If it takes one or even all of the cases before it, the Court may have to choose one of the paths laid down by its earlier decisions—the slow and steady path of the race discrimination cases, or the sudden change path of the abortion cases. Or it’s possible that, in light of the recent election results, the Court will let the issue simmer in the states a little while longer. Either way, the legal fight over same-sex marriage is far from over. If anything, it’s just getting started.

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