Lyle Denniston, the National Constitution Center's constitutional literacy adviser, says Supreme Court rulings always have consequences – especially, major decisions such as one about same-sex marriages.
THE STATEMENT AT ISSUE:
“The word that keeps coming back to me in this case is millenia….I don’t even know how to count the decimals when we talk about millenia. This definition [of marriage] has been with us for millenia. And it’s very difficult for the Court to say, oh, well, we know better….There has not been, really, time, so the [states] say, for the federal system to engage in this debate.”
– Justice Anthony M. Kennedy, in a comment during Tuesday’s Supreme Court hearing on whether same-sex couples will gain a constitutional right to get married. The Court will shortly cast its first vote on the case in a private conference, and then start crafting a ruling – one that is not likely to be announced until late in June.
WE CHECKED THE CONSTITUTION, AND…
Since 1803, the Supreme Court has claimed for itself the ultimate authority to decide what the words of the Constitution mean. It is an awesome task to strike down a law that has won passage in the halls of Congress or of a state legislature, because doing so may well frustrate the will of the citizenry. In fact, the Court has long followed the custom of refusing to decide a constitutional issue until it absolutely has to do so, in order to resolve a core question that affects how America governs itself, or how its people engage with their government or are ruled by it.
When the Supreme Court gathered in its chamber on Tuesday, before a capacity crowd (and one briefly disrupting protester in the audience), it once again faced the awesome task of judging a law’s constitutionality. In fact, at issue before the Court were the laws and constitutional amendments of some 30 states, banning same-sex marriage and refusing to recognize existing same-sex marriages performed in other states. Some of those have been struck down by lower courts, but only the Justices will have the last word on whether any of those provisions survives the constitutional challenge.
Although Justice Kennedy wondered out loud whether the Supreme Court should adopt a stance that it “knows better” about the constitutional meaning of marriage than those 30 states (and the many governments that, for a millennium, had confined marriage to a man and a woman), the reality is that the decision that the Justices will make it not about “knowing better,” but about what the 14th Amendment means in its promise of legal equality, when the claim of inequality is being made by a group that historically has not had much constitutional protection – America’s gay people.
It was clear that the Justices could feel the pull of history – even ancient history, back to Athens, and modern history on equality in America – as they pondered whether to use their ultimate constitutional authority to make same-sex marriage a nationwide phenomenon. There probably has not been a bigger constitutional question before them since the court itself was at the center of the civil rights revolution and the women’s rights revolution. If public opinion polls are trustworthy, many Americans say they are ready for same-sex marriage. But matching the Constitution to the opinion polls is not what the Supreme Court does.
Americans, in fact, should feel a kind of comfort that the task of constitutional decision-making is one that makes the Justices hesitate. If this were an easy or a superficial task, there would be no stability to constitutional meaning, and the basic document would change with the whims of each passing interest group or civic movement. Because it is so difficult, under the Constitution’s Article V, to amend the basic document, the only real shift in its meaning are likely to be those that emerge from the Supreme Court.
Two years ago, the court struck down a federal law, the Defense of Marriage Act, finding that the federal government had wrongly denied federal marital benefits to same-sex couples who had legally married in states where that was allowed. But the new case that the Justices now have under review, under the title Obergefell v. Hodges, is of even greater cultural significance: if the Justices were to rule that gay and lesbian couples have an equal right to enter marriage, despite state laws to the contrary, that would carry out in one fell swoop the legal opportunity for them to marry in all 50 states.
But if the court were to rule against same-sex marriage, that would be no easier task. In fact, as a result of lower court rulings over the past 22 months, there is a legal right for gays and lesbians to marry in 36 of the 50 states. Tens of thousands of couples have been married under those rulings, and the legality of each one of those would be open to question. Would the Supreme Court overturn every one of those court rulings? Would every one of those marriages be legally annulled? What would happen to all of the legal arrangements that those couples have entered into, as married partners – such as filing joint tax returns this month? What would the legal status of their children be? That would take a considerable unraveling, even if some state legislatures would react to such a ruling by agreeing to allow same-sex marriage under new laws.
What would happen next was simply not explore by the Justices and the lawyers at the Tuesday hearing. But Supreme Court rulings always have consequences – especially, major decisions on the meaning of the Constitution. As Americans await the judgment that the court will announce by next summer, it might be a good idea for someone to begin thinking about what happens next.
