Court due to make second trip down the aisle

By Richard L. Hasen
July 16, 2013

Near the end of his engaging and informative e-book on the Supreme Court’s recent same-sex marriage decisions, To Have and To Uphold, New York Times reporter Adam Liptak makes a prediction: “The day will come when the constitutional question [over the constitutionality of a ban on same-sex marriage] will return to the Supreme Court for some final mopping up, perhaps when the number of states still banning same-sex marriage has dwindled to a score or fewer.”

Though I agree with much of Liptak’s book, I think he’s wrong on this particular prediction: The constitutionality of bans on same-sex marriage will return to the Supreme Court sooner rather than later — and it will happen while more than a score of states  still ban the practice. What the court does then is anyone’s guess.

There’s good historical precedent for Liptak’s prediction. Take the case of poll taxes, which required people to pay money (including back taxes) in order to be able to vote. The Supreme Court in 1937 upheld poll taxes, provided they were not applied in a racially discriminatory way. But states started doing away with them, and the country passed the 24th Amendment to ban them in federal elections.

When four states still used poll taxes in state elections, the Supreme Court in a 1966 case, Harper v. Virginia Board of Elections, held the practice unconstitutional. It was classic Liptakian “mopping up.”

That Harper decision was controversial, since the question was whether the court needed to get into the mop-up business in the first place. If history was inevitably moving in this direction, why is court interference necessary? Indeed, Harper started out as a case affirming the poll tax, but the case was set for reargument after Justice Arthur Goldberg wrote a blistering draft dissent and three other justices changed their minds over the constitutionality of the poll tax in the summer of 1966.

There’s reason to believe that same-sex marriage bans will not be like poll taxes — disappearing inexorably across the states, with the remnants snuffed out by the Supreme Court. Instead, such bans are likely to remain in place in many red states. If that’s the case, then the court will face more than a mop-up chore.

These days, it is increasingly common to see different laws being passed in red states and blue states. It could be about abortion, where Texas and North Carolina consider restricting abortion even further and California looks for ways to make abortion more easily available. It could be how we run our elections, where Republican states have enacted voter identification laws and Democratic states have moved toward same day voter registration.

There will also likely be red state/blue state divide on same-sex marriage. Proposition 8 could never again pass in California, and it seems pretty clear that blue states will all be adopting same-sex marriage in the near future. But is same-sex marriage coming to Texas or Alabama or Utah any time soon, or soon enough before cases would come back to the court? I don’t see it — even if Nate Silver projects that most states will ultimately get there.

With red states holding to their same-sex marriage bans, marriage equality proponents will continue bringing constitutional lawsuits to challenge those bans. The American Civil Liberties Union just sued Pennsylvania over its same-sex marriage ban, and it will soon file suits in Virginia and North Carolina.

If history is any guide, lower courts will divide over the constitutionality of such bans. Some courts may follow the lead of that part of Justice Anthony Kennedy’s opinion in the Defense of Marriage Act case, seeing same-sex marriage bans as driven by unconstitutional animus toward LGBT people.

Other courts may follow the lead of the other part of Kennedy’s opinion in the DOMA case, seeing the issue of same-sex marriage as one properly left for each state to decide. The lower courts will decide whether Kennedy’s gay rights psyche is stronger or weaker than his federalism psyche.

Within a few years, these cases will start percolating back up to the Supreme Court. Especially if lower courts split over the question of the constitutionality of same-sex marriage bans, it will be hard to see how the court avoids deciding the question.

Liptak, in his e-book, says it is “awfully likely” the four most conservative justices were the ones who voted to hear the challenge to California’s Proposition 8, “making a calculation that their chances of winning would not improve with time.” The court ultimately ducked the constitutional issue in that case, finding that the law’s defenders didn’t have legal standing to defend the case.

Liptak is right that time is not on the side of marriage equality opponents. But if the case reaches the Supreme Court while Kennedy remains the deciding vote, it is anyone’s guess whether red state same-sex marriage bans will bite the dust or whether federalism will win the day yet again.

PHOTO (Top): Army Captain Michael Potoczniak (L), and Todd Saunders (R), his partner of 10 years, exchange vows during their wedding ceremony at City Hall in San Francisco, June 29, 2013. REUTERS/Stephen Lam

PHOTO (Insert): Supreme Court in Washington. REUTERS

PHOTO (Insert B): Justice Anthony Kennedy testifies about judicial security and independence before the Senate Judiciary Committee on Capitol Hill in Washington Feb. 14, 2007. REUTERS/Kevin Lamarque

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