The Party Line
4:52 pm
Mon March 25, 2013

A Legal Primer As High Court Decides Gay Marriage

Michael Bitzer

In his 18th century tour of the new American republic, Alexis de Tocqueville commented that most controversies eventually arrive in court. Over its history, the U.S. Supreme Court has upheld de Tocqueville’s observation in key battles, both political and social. 

And the justices on the high court are preparing to confront a new set of controversies. 

Some of the key issues that relate to the arguments over gay marriage stem from a long line of constitutional issues and cases.  To understand how the court may deal with the issues of the Defense of Marriage Act (DOMA) and the California Proposition 8 (banning same-sex marriages), a brief overview of some relevant cases might shed some light.

Skinner v. Oklahoma

This 1942 case involved the sterilization of a “habitual criminal,” defined as someone who had been convicted two or more times by the State of Oklahoma.  In striking down the statute, the US Supreme Court held that the 14th Amendment was impacted by “legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race,” wrote Justice William O. Douglas, who would author the next controversial opinion in the line of cases. 

Griswold v. Connecticut

This 1965 U.S. Supreme Court case challenged a Connecticut statute that made it a criminal act for doctors to prescribe contraceptives to their married patients. 

In striking down the state law, the Court held that the law impacted a myriad of constitutional rights, or “penumbra” of “various guarantees [that] create zones of privacy,” which some would argue spark a new rights revolution. 

Again, Justice Douglas authored what many conservative jurists would argue as “judicial activism” by reading into the Bill of Rights a “right of privacy” created out of combining written rights and using the 9th Amendment’s “unenumerated” rights.

“Unenumerated” rights recognized that perhaps not all of the written rights we as citizens possess were included in the Bill of Rights, so it was seen as a way to ensure we didn’t give other rights not expressed.

The acknowledgement of a “right of privacy” would have a significant impact on the case of Roe v. Wade, the beginning of judicial rulings on abortion. 

Baker v. Nelson

One of the key issues confronting the issue of same-sex marriage is a 1972 case from Minnesota’s high court, which denied the right of same-sex couples to marry. 

In Baker v. Nelson, the Minnesota Supreme Court held that the definition of “marriage” has historically meant “the state of union between persons of the opposite sex” and that the U.S. Constitution’s 14th Amendment ensuring due process (fair treatment) and equal protection of the law does not mean that the states aren’t allowed to place some restrictions on who can marry within their state.

On appeal, the U.S. Supreme Court dismissed the case “for want of substantial federal question,” meaning the court did not see how the U.S. Constitution or federal law related to the case, letting the Minnesota’s ruling stand.

With an established precedent (prior ruling, or stare decisis in legalese), it is often hard, but not impossible, for the court to overturn prior rulings, particularly with the development of post-Baker lineage of cases. 

Bowers v. Hardwick

The nation’s high court did confront a challenge for the rights of homosexuals 14 years later in a case out of Georgia, Bowers v. Hardwick

In the 1986 case that challenge Georgia’s sodomy statute, the U.S. Supreme Court’s majority opinion held that the Constitution did not confer a “fundamental right upon homosexuals to engage in sodomy” and that “no connection between family, marriage, or procreation [which the Court found as constitutionally protected] and homosexual activity, on the other, has been demonstrated…”

“Moreover,” Justice White wrote, “any claim … that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.”

Romer v. Evans

In this 1996 case, Colorado voters approved an amendment to their state’s constitution that named a class of citizens who were “homosexual, lesbian or bisexual” and could be denied protection under state antidiscrimination laws.

Writing for the Court, Justice Anthony Kennedy held that key “to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. `Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.'"

Lawrence v. Texas

The Bowers case would be revisited nearly twenty years later in Lawrence v. Texas, where the U.S. Supreme Court struck down a Texas law criminalizing “two persons of the same sex to engage in certain intimate sexual conduct.” 

Again, writing for the majority in 2003, Justice Kennedy held that “matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”

While recognizing the value of stare decisis, Kennedy’s majority opinion overturned the Bowers ruling due to “serious erosion” from other rulings. 

Since the Court’s ruling in Lawrence, the dramatic transformation of public opinion regarding gay marriage and homosexuality has astonished many.  In a recent Washington Post-ABC News poll, 58% of Americans now believe it should be legal for gay and lesbian couples to marry. 

When the Lawrence case was handed down a decade ago, nearly an identical number—55%—opposed the idea of same-sex marriages. 

Could Justice Kennedy also acknowledge “serious erosion” since Baker v. Nelson

It is rare to have the number of hours committed to oral arguments in the nation’s highest court, with the last time being the Affordable Care Act.  And the issues—of due process and equal protection, of states’ rights, of unenumerated rights—are weighty and substantial in their own rights.

But many believe that with the public’s dramatic change in opinion and the growing number of political elites, including President Obama, Republican U.S. Sen. Rob Portman and Democratic U.S. Sen. Claire McCaskill, announcing their support of gay marriage, the court will be confronting an issue that could be of historic nature.

In fact, Republican strategist Karl Rove can imagine a Republican presidential candidate supporting gay marriage.

With their decision later this summer, the nation’s Supreme Court justices continue their legacy and role as de Tocqueville predicted.