What Next for Gay Marriage?

Voters here in Wisconsin passed a ban on same-sex marriage in the fall of 2006. The following morning, I thoughtlessly tried to console a lesbian coworker by predicting a universal right to marry within a decade. “That’s fine,” she replied blankly, “but that doesn’t help us now.” For me, the gay marriage issue was and will always be no more than a legal and moral abstraction. For my coworker and her long-time partner, the marriage ban was a personal tragedy and a cold, hard slap in the face from their most trusted friends and neighbors.

My prediction may have been insensitively timed, but it was firmly based on clear trends toward public and legal acceptance of homosexuals in the United States. In 2003, for example, the Supreme Court overturned Bowers v. Hardwick—precedent from seventeen years past—to strike down a state law criminalizing gay sex. “[A]dults may choose to enter upon this relationship in the confines…of their own private lives and still retain their dignity,” Justice Anthony Kennedy wrote for the majority in Lawrence v. Texas, and “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexuals do.”

In isolation those words appear to bode well for homosexuals. But other scraps of Lawrence muddy the jurisprudential waters. First, although the Texas statute discriminated against gay sex on its face, the Court’s ruling was based on due process but not on equal protection grounds. Second, and more importantly, Kennedy’s opinion explicitly warned that his ruling did “not involve…formal recognition to any relationship that homosexual persons seek to enter.”

But Justice Antonin Scalia wasn’t convinced. In his dissent, Scalia protested that the majority opinion “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.” Lawrence “‘does not involve’ the issue of homosexual marriage,” he carped, “only if one entertains the belief that principle and logic have nothing to do with the decision of this Court.”

So, assuming that a legislative ban on gay marriage like California’s Proposition 8 will soon reach the Supreme Court, what’s the likely outcome? For Martha Nussbaum, University of Chicago professor of law and ethics and author of From Disgust to Humanity: Sexual Orientation & Constitutional Law (Oxford, 2010), the answer depends upon the relative influence of two competing philosophical paradigms.

Based partially in right-wing collectivism, the “politics of disgust” defer to the group and sustain democratic domination of disfavored minorities. Perhaps epitomized by Englishman Lord Devlin’s and American Leon Kass’s views that the average person’s deep-seated aversion toward a given practice is reason enough to make it illegal, disgust cares not whether the practice is actually harmful.

The “politics of humanity,” by contrast, is founded in the tenets of classical liberalism and is categorically anti-collectivist. Exemplified by John Stuart Mill’s libertarian principle that individual freedoms should remain unrestricted except to avoid injury to others, humanity relies on the imaginative skills inherent in compassion and sympathy and emphasizes equal respect for the dignity of all persons.

According to Nussbaum, the politics of disgust are slowly yielding to the politics of humanity in the United States. And “[e]ven those who believe that disgust still provides a sufficient reason for rendering certain practices illegal,” she vies, “should agree…that disgust provides no good reason for limiting liberties or compromising equalities that are constitutionally protected.” But constitutional interpretation is precisely where the ethical rubber hits the political road.

One can certainly argue, as Nussbaum does, that American constitutional jurisprudence has already displayed an increasingly enthusiastic tendency to reject disgust in favor of humanity. In recent decades, especially during times of peace, the Court has afforded equal protection or substantive due process rights to a wide variety of disfavored minorities, including women, blacks, the mentally retarded, members of non-traditional families, and even prisoners.

Indeed, seven years prior to Lawrence, the Court granted a mammoth victory to homosexuals too. In 1992 Colorado passed Amendment 2, a ballot measure disqualifying gays from the benefits of antidiscrimination laws. Proponents justified the ban contending that homosexuals shouldn’t be afforded “special rights.” Penning the majority opinion in Romer v. Evans as well, Justice Kennedy rejected that characterization of the ban’s effect. “This Colorado cannot do,” he ruled on equal protection grounds: “A state cannot so deem a class of persons a stranger to its laws.”

So, in light of Romer, are states precluded from deeming gay persons strangers to their laws of marriage? Nussbaum remains skeptical. In that case, she explains, “illegitimate intent was written all over the law and its defense.” Romer was “a very narrow holding,” she cautions, offering “little guidance for future antidiscrimination cases involving sexual orientation.” Importantly, Kennedy had subjected Colorado’s law to mere rational basis review as opposed to intermediate or strict scrutiny, meaning that he did not, in Romer, identify homosexuals as a suspect class deserving maximum protection. Which is not to suggest that he couldn’t or wouldn’t do so in a future case, but rather to point out that other discriminatory state laws, if more shrewdly crafted, might survive the less demanding standard of review.

Thus, Nussbaum reasons, “The secure protection of gays…would seem to require a holding that laws involving that classification, like laws involving race or gender, warrant some form of heightened scrutiny.” In order to induce such a holding, a plaintiff would generally need to convince a court that homosexuality is an immutable characteristic (a contentious proposition nevertheless consistent with available scientific evidence), that homosexuals have suffered a long history of discrimination, and that they remain politically vulnerable.

Somewhat surprisingly, however, Nussbaum argues that state rather than federal courts should manage the issue of gay marriage until democratic majorities can be trusted to support inclusion. Local adjudication, she argues, would shield the U.S. Supreme Court from this particularly hazardous battle in the culture wars, and encourage the kind of robust experimentation inherent in federalism that, hopefully, will result in a more educated polity.

Certain states have already taken that initiative. Nussbaum offers Varnum v. Brien, a 2009 decision delivered by the Supreme Court of Iowa, as ample grounds for optimism. Although only 44 percent of Iowans presently support same-sex marriage, the seven-member court in Varnum struck down the local Defense of Marriage Act, and, applying intermediate scrutiny, unanimously ruled that the state had no important interest in denying marriage licenses to its citizens based on sexual orientation.

What Nussbaum could not have known when writing From Disgust to Humanity was that on November 2, 2010, Iowa voters would oust each of the three Varnum justices who were up for retention. The facts surrounding the election make it clear that Iowans were reacting to the previous year’s ruling on gay marriage. The high court justices faced no opponents and needed only 50 percent of the vote to retain their seats. By contrast, each of the seventy-one lower court judges on the ballot were easily reelected. Incidentally, the anti-retention campaign was heavily financed by out-of-state special-interest groups, including the National Organization for Marriage and the American Family Association.

So, with Iowa in mind, might judges subject to reelection in other states be less inclined to stand up for homosexuals in defiance of local majorities? Gays might be forced to look to the U.S. Supreme Court once again, and to Justice Kennedy, who is likely to cast the deciding vote on a panel equally divided over several social issues. Would Kennedy extend his reasoning in Lawrence and Romer to cover same-sex marriage rights? Or would the committed Catholic Justice, appointed by Ronald Reagan in 1988, draw the line at marriage, a term still rife with religious connotations? Would he defer to democratic majorities, perhaps siding with Scalia the constitutional originalist?

In Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty (Kansas, 2009), Frank Colucci, political scientist at Purdue University–Calumet, dispels popular reports of Kennedy’s alleged inconsistency, dissecting the Justice’s public declarations to expose an underlying jurisprudential philosophy of individual rights. Kennedy “employs a moral reading of the Constitution,” Colucci finds, “to enforce individual liberty, [but] not equality, as the moral idea he finds central” to the document. Although he often sides with judicial minimalists and originalists, he does so for different reasons. In fact, Kennedy favors an expansive role for the Court and remains the justice most likely to strike legislation he deems contrary to the Constitution.

Much to Scalia’s irritation, Kennedy’s search for liberty’s parameters ends not in the Constitution’s text or tradition. Rather, his overriding concern seems to be whether government intrusion prevents the individual “from developing his or her distinctive personality or acting according to conscience,” according to Colucci, or demeans a person’s community standing and denigrates his or her “human dignity.” To provide “objective referents” for his constitutional interpretations, the Justice cites sociological research, international law, and emerging political consensus. His moral precepts, the author says, “have clear rhetorical roots in post-Vatican II Catholic social thought.”

In cases dealing with religion specifically, Kennedy has supported “noncoercive” government action, opining in Allegheny County v. Greater Pittsburgh ACLU, for example, that states should be given “some latitude in recognizing and accommodating the central role religion plays in our society.” Then again, in Lawrence, the Justice clearly emphasized a religiously denounced individual right, professing the founders’ insight that “later generations [would] see that laws once thought necessary and proper in fact serve only to oppress.” Similarly, Kennedy was swayed in Roper v. Simmons by recent trends among a very few states and in the world at large before concluding that death was a cruel and unusual punishment for minors.

Although he recognizes Kennedy’s potentially decisive impact on such questions, Colucci does not directly address the prospects for same-sex marriage. Nevertheless, his conclusions seem to portend well for gays. In Kennedy’s constitutional jurisprudence, personal autonomy has trumped democracy. Tradition and precedent are crucial, yes, but don’t entirely define the Court’s dynamic and continuing role to “discover” the meaning of individual liberty, perhaps through recent expressions of moral advances made both at home and abroad.

All of which leads me briefly to Proud To Be Right: Voices of the Next Conservative Generation (Harper, 2010), a surprising title to cite, one might hastily presume, in any article predicting the relatively imminent legalization of homosexual marriage. Here, Jonah Goldberg—founding editor of the National Review Online, contributor to Fox News, and best-selling author of Liberal Fascism—has assembled an impressive band of young and unapologetically conservative writers—some religious, some secular—“who do not yet have a megaphone, but might deserve one.”

In “The Politics of Authenticity,” social conservative Matthew Lee Anderson warns politicians that his peers are considerably less obsessed over sexual mores, but much more concerned about the ethics of conducting business and war than their older, value-voting predecessors. A more intellectual and less personally intrusive conservatism focused on economics and foreign policy? One can only hope.

But particularly relevant to the issue at hand is a refreshingly candid piece from James Kirchik, contributing editor to the New Republic, called “The Consistency of Gay Conservatives.” Though the GOP’s base—presently empowered by the religious right—remains opposed to gay marriage, Kirchik portends that support will likely increase as the Republican pool grows younger. Why? Because “the ‘gay agenda’ today,” he says, “is fundamentally conservative.”

Gay activists in California, after all, protest not for “free love,” but only for the right to marry their committed partners. “They want to join this bedrock institution,” Kirchik reminds us, “not tear it apart.” In fact, the prevailing scientific explanation for homosexuality—unmistakably deterministic—is repudiated not so much by conservatism, the author contends, but instead by “left-wing ‘queer’ theorists, who argue that binary sexuality is a social construct.” (A little more food, perhaps, for feminist thought.)

The younger pool, liberal and conservative alike, is also less religious, which further contributes to the lessening of hang-ups regarding homosexuality and marriage.

Living in the largely rural Midwest, one is tempted to write off homosexuals for inspiring too few vocal allies and entirely too many powerful foes. Gay marriage remains one of those annoying, distracting, “hot button” political skirmishes in a larger culture war that, quite frankly, never deserved Americans’ precious time and energy in the first place. But the forces of religious bigotry will soon lose this battle, as they have so many others in recent centuries.

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