This week the Supreme Court takes up same-sex marriage, amid shifting American mores and a healthy debate about equality. Yet the two cases before the High Court are less about the institution of marriage than the sanctity of democratic institutions and the proper role of the courts.
Over time, through popular consent, the law comes to reflect an evolving social consensus. On gay marriage, state by state, election by election, voters are extending to gay and lesbian couples the same rights and responsibilities that pertain to a union between a man and a woman. Those choices are the pith of self-government, even if fair-minded voters in other states preserve the traditional meaning.
If the Supreme Court now reads a right to gay marriage into the Constitution and imposes that definition on all states, it won’t settle the debates Americans are conducting. It will inflame them and ensure they never end, prematurely aborting the give-and-take on contentious moral and social issues the Constitution is designed to encourage. Five Justices—or fewer, if they split into pluralities—could further polarize the body politic and make compromise more difficult.
In Hollingsworth v. Perry, the Court will review Proposition 8, a 2008 California referendum that overturned that state’s supreme court ruling creating a right for gays and lesbians to have their relationships legally identified as marriage. The claim is that the one man, one woman definition violates the Fourteenth Amendment’s guarantee of equal protection. That is also among the claims in U.S. v. Windsor, which challenges the Defense of Marriage Act, the 1996 law that uses the traditional definition for federal law and says one state’s definition cannot bind another’s.
Liberals do not merely contend that laws based on sexual orientation lack any “rational basis.” They also claim the only motivation for such laws is prejudice against gays. They therefore want the Court to designate homosexuals as a legally protected group like minorities or women and apply to Proposition 8 the highest levels of constitutional protection, called strict or heightened scrutiny.
The Court has not used the equal protection clause to create a new category of people who need extra legal defenses in three decades, largely because doing so disrupts the ebb and flow of the ordinary political process. Such caution is prudent, especially here. Homosexuals are not disenfranchised like blacks in the mid-20th century, as the very progress of the gay rights movement shows.
Nine states and the District of Columbia now recognize same-sex marriages, up from zero less than a generation ago. Though the early states were ordered to do so by their courts, more recent gains came through legislatures, as in New York. Last year, proponents won three of three popular referenda in Maine, Maryland and Washington state. Through persuasion, gay marriage has come to enjoy a slight popular majority.
A mere 17 years ago the Defense of Marriage Act, or Doma, passed with bipartisan majorities in the House (342 to 67) and Senate (85 to 14). Only a year ago President Obama opposed gay marriage. Now gay marriage is the default position of the Democratic Party, Bill Clinton is apologizing for signing Doma, and Mr. Obama’s Attorney General not only refused to defend this federal statute but is urging the Court to overturn it. Growing numbers of Republicans endorse gay marriage as well.
The Court ought to conclude on the merits that marriage as historically understood does have a “rational basis.” This version of the equal protection test properly defers to the deliberative judgment of voters and their elected representatives. Traditional marriage laws may support legitimate goals like promoting intact, reasonably stable wedlock between mothers and fathers for children, or simply stem from a desire to not experiment with a core unit of civil society.
Other states revise marriage arrangements to reflect new values and norms, but neither judgment is irrational. That’s the genius of the U.S. federalist system. It would be an act of judicial imperialism to declare that the meaning of marriage that has prevailed across the Western world for millennia is suddenly unconstitutional because it is “irrational” and force the new concept on everyone.
A one-fell-swoop ruling would also contradict numerous precedents, in particular Romer v. Evans in 1995. Writing for a 6-3 majority, Justice Anthony Kennedy held that a Colorado constitutional amendment forbidding local gay rights legislation lacked a rational basis because it singled out gays, but he expressly declined to establish gays as a class that needs special antidiscrimination treatment. In 2003 in Lawrence, the Court overturned Texas laws that criminalized certain forms of sexual behavior, but an infringement of individual liberty is not the same as a demand to create new individual rights.
Short of an outright resolution, the Court could honorably rule that the private parties who filed the case don’t have Article III standing to sue. California declined to appeal when Proposition 8 was dissolved by a district court and thus there is arguably no longer a “case or controversy.”
Mr. Obama’s Justice Department is offering the Justices another legal off-ramp—at least for California and the seven other states that have created civil unions for gays. The argument is that because civil unions have essentially the same rights as marriages with a different label, the “marriage” label can no longer be denied in those eight states. At least this would not impose California’s law on all 50 states.
Which brings us to the Defense of Marriage Act, which liberals and some libertarians argue is an affront to federalism. We disagree.
Under their police powers, the states govern domestic arrangements—marriage, divorce, child custody, etc.—and for two centuries the federal government borrowed the state definitions. This was unsettled in 1993 when the Hawaii supreme court legalized gay marriage, confronting Washington and the states with the possibility of many competing interpretations.
In this unprecedented context, refusing to take a position was itself taking a position, so Congress decided to clarify a uniform national standard for the purposes of the 1,100 federal laws that rely on marriage. For example, Doma’s Section 3 defines who is a spouse for Social Security benefits and which couples can file joint tax returns.
Doma doesn’t usurp state prerogatives or outlaw experimentation, or else those nine states could not have legalized gay marriage since Doma passed. In the Constitution’s system of dual federal-state sovereignty, each coequal sovereign has the power to define marriage for its own sphere.
Some scholars of federalism claim Doma was meant to express a policy judgment about gay marriage that is not supported by the federal government’s enumerated powers. But Doma embodies federalism at its best by keeping the channels of democracy open. Section 2 says one state does not have to accept another state’s definition under the Constitution’s full faith and credit clause, preserving each sovereign’s right to decide for itself.
In 1996 it was rational for Congress to choose for itself the definition that prevailed in most states. If more states redefine marriage, then Doma’s constitutionality as a way-station could be in doubt. The law will probably be repealed soon enough anyhow, though recognizing all gay marriages would constitute a multibillion-dollar shock to the federal fisc. For now, however, Congress still has compelling reasons to retain a uniform approach across the federal government.
The marriage debate has often been difficult, but it also affirms America’s political tolerance and adaptability. The best tradition of U.S. democracy is to mediate controversies, giving all sides a fair hearing. Not everyone will like the results at the ballot box, but at least they can accept them as legitimate.
A same-sex marriage ukase would achieve that rare thing, harming advocates and opponents and everyone in between. Since marriage is more than an intimate relationship but an expression of legitimacy in the eyes of society, Supreme Court-mandated marriages would confer fewer benefits on gays and lesbians than would popular acceptance. Meanwhile, the Court would tell millions of Americans that their deep moral convictions are artifacts of invidious bigotry.
The Supreme Court does not have a good record legislating cultural change. A ruling on behalf of same-sex marriage could enshrine Hollingsworth and Windsor with Roe v. Wade, the 1973 abortion decision that imposed a judicial diktat even as laws in many states were liberalizing. Instead of finding a rough consensus inside the political mainstream, abortion became an all-or-nothing combat that still rages.
The same-sex marriage cases are an opportunity for the Court to show it has learned from that mistake. Justice Kennedy and his colleagues can incite another Forty Years War or they can return their social jurisprudence to the measured, incremental approaches the Constitution intends.
A version of this article appeared March 25, 2013, on page A16 in the U.S. edition of The Wall Street Journal, with the headline: Marriage and the Supreme Court.