Deciding not to decide on gay marriage

March 26, 2013 

The Supreme Court began hearing two days of oral arguments Tuesday on the constitutionality of Proposition 8, the 2008 initiative that banned same-sex marriage in California, and on the Defense of Marriage Act, the 1996 law that forbids federal recognition of same-sex marriage.

DOMA poses easier legal issues. The statute, which President Obama believes is unconstitutional and which has been repudiated by Bill Clinton, who signed it, inserted the federal government into marriage law, historically the domain of the states. It was clearly driven by antigay animus, and as lower courts have ruled, there simply is no good reason for Congress to refuse to treat all state-recognized marriages equally.

The Prop 8 case, Hollingsworth v. Perry, poses thornier questions about political equality and could have much broader consequences, because it calls into question the rights of all states to limit marriages to unions between men and women. I fully support marriage equality, but I believe that in this case the court should decide not to decide the gay marriage issue at all. The proposition has already been struck down by federal judges at the trial and appellate levels, the governor and attorney general of California have refused to defend the proposition and the parties seeking the Supreme Court’s review lack the legal capacity, or standing, to pursue the case.

If the court decides to resolve the merits, it should rule that the Constitution commands recognition of same-sex marriage on equal terms with opposite-sex marriage. A decision to the contrary would be a modern-era Plessy v. Ferguson, the notorious 1896 decision affirming segregation as “separate but equal.” Correspondingly, a decision ruling Prop 8 unconstitutional would be the Roberts court’s Brown v. Board of Education, the 1954 decision that struck down racial segregation in schools. The legal and moral choice should be clear.

But the Brown analogy should give us pause. Same-sex marriage is legal in nine states and the District of Columbia, but is the country ready for a decision requiring all 50 states to recognize such unions immediately?


Brown triggered a notorious backlash, and its impact was blunted by demographic changes and later court rulings, leading to what education scholar Gary A. Orfield has called the “resegregation” of American schooling.

Or consider Roe v. Wade, the 1973 decision that protected a woman’s right to have an abortion. Justice Ruth Bader Ginsburg, an unabashed defender of abortion rights, has criticized Roe for imprudently intervening in that debate, at a time when the idea of abortion rights was already gaining ground at the state level. The Roe decision galvanized the anti-abortion movement, with political effects that still linger.

In the long run, national recognition of same-sex marriage is inevitable. Same-sex marriage rights, at first imposed by courts, have now been recognized by state legislatures and prevailed in all four states where they were on the ballot in last year’s election. Young people overwhelmingly support it, and public opinion has shifted on this issue faster than on almost any other social issue in history. It is only a matter of time before all state laws reflect that view.


Prudence counsels that marriage equality should be allowed to continue gaining support in the states, and that a federal resolution should be left for another day. What is more, the court’s doctrine dictates just this deferral. California has not only chosen not to appeal, but has actually filed a brief supporting its law’s challengers. A coalition of Californians who originally sponsored Prop 8 has stepped in to defend the law. But they are not accountable to the state or its people, are free to pursue their own ideological interests and have suffered no “distinctive injury” from the 2010 lower court decision that found that Prop 8 violated the 14th Amendment’s guarantees of due process and equal protection.

The Supreme Court has long ruled that a mere ideological interest in seeing a law enforced is a “generalized grievance” that is not sufficiently personal or concrete to support a constitutional “case or controversy,” the only kind the court has the authority to resolve.

A limited Prop 8 ruling would respect important constitutional limits on judicial power, limits the court’s current conservative justices have long insisted upon. It would leave intact the lower-court ruling, preserving the roughly 18,000 same-sex marriages that have already been conducted in California, and allow additional same-sex marriages in the nation’s most populous state. And it would permit marriage equality to propagate organically, state by state.

Many people, myself included, would love to see Justice Anthony M. Kennedy, the presumptive swing vote on the court, declare a constitutional right to marriage equality in language as majestic and authoritative as in his 2003 decision in Lawrence v. Texas, which struck down the remaining sodomy laws in America. But the court is constitutionally limited to deciding “cases or controversies,” and this case, in which no injured party has appealed, and those who have are unaccountable, is inappropriate for resolution.

Equally important, history suggests it would be unwise for the Supreme Court to impose a uniform solution on the nation now. Doing so could touch off huge civil resistance in the most conservative states. Prudence and law dictate the same result: cold feet at the altar.

New York Times News Service

David Cole is a professor of law at Georgetown University.

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