Construction Literary Magazine

Fall 2020

Public Opinion and Constitutional Law: A Look at the Gay Marriage Cases

Public Opinion and Constitutional Law: A Look at the Gay Marriage Cases

Photograph via Flickr by cool revolution

ANTHONY: Welcome to another edition of Sam and Anthony discuss hot button Supreme Court cases. We’re a little late to the party to discuss how the argument went and what signals the Court sent about how it is likely to rule, and obviously too early to be talking about the actual decision, so I wanted to use the gay marriage cases to touch off a more general conversation about the role of the Supreme Court in a democratic society. Probably more so than any other case the Court has ever decided, the gay marriage cases take place against the backdrop of rapidly changing public opinion. Between the request for the Supreme Court to review the legality of California’s gay marriage ban last July and the oral argument on March 27th and 28th, the following developments occurred: Maine, Maryland, Washington, and Minnesota became the first states to vote in favor of gay marriage in statewide elections. Polls are beginning to show majority (not just plurality) support nationwide for gay marriage. Senator Rob Portman of Ohio became the first Republican senator to come out in favor of marriage equality, joining prominent Republicans like presidential candidate Jon Huntsman and California gubernatorial candidate Meg Whitman in reversing his stance on the issue. Former Secretary of State and future president Hillary Clinton announced the completion of her “evolution” toward support of gay marriage. Since the Supreme Court heard argument in the gay marriage cases, Mark Kirk of Illinois became the second Republican senator to announce his support for marriage equality, and similar announcements from multiple Democrat Senators (in fact, all but three Senate Democrats are now on the record supporting gay marriage) mean that a majority of the United States Senate now supports gay marriage. According to Pew Research Center, “[t]he rise in support for same-sex marriage over the past decade is among the largest changes in opinion on any policy issue over this time period.” Even the strongest opponents of gay marriage are beginning to acknowledge the writing on the wall.

Going into oral argument, I was very optimistic about the Court reaching the correct result in these cases largely because of this obvious trend in public opinion. I could picture Justice Kennedy (and Roberts and maybe even Alito) imagining the history books 50 years in the future and not wanting his legacy tied to a decision that would be viewed as one of the last remnants of a dying bigotry. (I could also picture Justice Scalia imagining the history books 50 years in the future and relishing his role as the villain). The analyses of the oral argument make me less confident that the Court (read: Kennedy, whom most assume will ultimately act as the swing vote in the gay marriage cases) will deliver a clear and resounding victory for gay marriage, but it seems very unlikely the decisions will turn back the progress that is being made on this issue.

With that windup, I pose to you the following questions: What impact will public opinion have on the Court’s gay marriage decisions? What impact, if any, should public opinion have on these decisions?

[pullquote_right]I could picture Scalia imagining the history books and relishing his role as the villain.[/pullquote_right]

SAM: Much has been made of the role of public opinion in shaping the Justices’ views since the Court’s landmark decision to uphold the Affordable Care Act. The general consensus appears to be that the five conservatives (and don’t let anyone tell you that Kennedy is a moderate; he isn’t) were poised to strike down the law, but that Chief Justice Roberts ultimately changed his mind and sided with the four liberals in order to avoid widespread public loss of faith in the Court’s neutrality after what would inevitably be viewed as a politically motivated, partisan overturn of the ACA. But the underlying question is nothing new: commentators and scholars have speculated as to the role of public opinion on the Supreme Court for decades, and Justice Ruth Bader Ginsburg has recently come under fire for her suggestion that the Supreme Court moved too far, too fast in its decision in Roe v. Wade. This is perhaps one of the more frank acknowledgments from a sitting Justice that the societal consequences of high-profile rulings certainly weigh on the Court’s mind.

But if the law is the law, doesn’t it border on malpractice for a Justice (or any judge, for that matter) to change his or her opinion of the law based on the political mood of the era? Wouldn’t basing decisions on public pressure help fuel the common assumption that the Justices’ personal politics dictate their rulings? Before exploring whether public opinion should have a role in shaping Supreme Court decisions, I think a more immediate question is how public opinion could influence the Justices. This requires examining the competing constitutional interpretational methodologies at odds in the modern Court: “originalism” and the “living Constitution.”

Originalism, a form of interpretation most famously championed by Justice Scalia and other conservatives, is based on the premise that the Constitution must be interpreted based on (1) what the individuals who drafted the provision at issue intended the provision to do or to mean, and (2) what a reasonable person living at the time the provision was passed would have understood it to mean in context. This doctrine rejects the notion that constitutional rights, norms, or protections can “evolve” over time, or be “implied” into the Constitution, and instead argues that the text is the text and that is pretty much that.{{1}} For example, in the gay marriage cases, Justice Scalia will undoubtedly argue that because the Constitution does not contain an explicit right to gay marriage, and because there was no commonly accepted right to gay marriage when the Constitution was drafted, we cannot therefore interpret the Equal Protection or Due Process Clauses as including a right to gay marriage. However, given that many modern court cases are based on technology or societal institutions that the Framers could never have imagined, originalism can often lead to some bizarre rulings: for example, Justice Scalia recently ruled that planting a GPS device on a criminal suspect without a warrant was an illegal search by arguing that the Framers would never have allowed “a constable [to] secret[] himself somewhere in a coach and remain[] there for a period of time in order to monitor the movements of the coach’s owner.” Yes, determining a fundamental 21st century constitutional right based on what Paul Revere would have thought had he found an undercover homunculus burrowed in his hardtack—that’s a good idea!{{2}}

[pullquote_left]Originalism rejects the notion that constitutional rights, norms, or protections can “evolve” over time.[/pullquote_left]

By comparison, the concept of a “living Constitution,” most notably advocated by Justice Breyer, is based on the premise that the Constitution is dynamic, and that constitutional rights should evolve and adapt based on the modern societal norms and understanding of the law. Rather than having to view each nuanced question of modern law based on the views of the late 18th century Christian white aristocracy, living constitutionalists believe that flexible and practical understanding is necessary to the question of justice. Perhaps the most controversial consequence of the living Constitution approach was the development of a constitutional “right to privacy” inherent in the Due Process clause that has led to protections for, among other things, the use of birth controlabortion, and homosexual sex. Conservatives (again, usually Scalia) have railed against these decisions by arguing that because these practices were neither explicitly discussed in the Constitution nor socially acceptable or widespread at the time of the founding, they cannot be constitutionally protected and must be advanced legislatively. They argue that allowing rights to evolve over time will allow judges to “create” constitutional provisions out of nowhere that are tailored towards their own political, religious, or other personal preferences, the worst kind of judicial activism.

So rather than answer your (excellent) questions, I’ll push them back to you: in light of the competing judicial philosophies that help motivate the Court’s ideological divide, what role do you see public opinion as having in the gay marriage cases?

ANTHONY: As I indicated in my first entry, I think this question has to be broken down into multiple parts. The “how” and the “should” are both very important questions. But it’s also important to differentiate the different possible meanings of “public opinion.” As indicated by your explanation of living Constitutionalism, the Court is influenced by public opinion in ways that are much more complex than considering what a poll of “how should the Court rule in case X?” would look like. Living Constitutionalism requires constant evaluation and re-evaluation of society’s norms and attitudes.

How will the crasser “is gay marriage popular?” question affect the Court’s deliberation? As I indicated earlier, I think it will have a large impact: however convinced the justices may be of the prevailing views on gay marriage, they can see how an opinion striking down gay marriage will be viewed 50 (or maybe just ten) years from now, and have to be concerned about being tied to the next Plessy v. Ferguson.

[pullquote_right]As a matter of pure logic, many of the strongest arguments in favor of gay marriage could apply to polygamy.[/pullquote_right]

As important as that popularity-based component is to what I believe will be a favorable decision for gay marriage, the more norm-based component of public opinion is even more important. Indeed, a decision finding any kind of 14th Amendment protection for gay marriage, however narrow, would not be possible without the changes in knowledge about and attitudes toward homosexuality over the past half-century. The slippery slope “what about polygamy, incest, and beastiality?” argument against gay marriage made famous by Rick Santorum is met with ridicule, but it is much less ridiculous removed from a context where we know that homosexuality is an innate characteristic and that gays and lesbians should be encouraged to embrace who they are rather than to conform to heteronormative expectations. As a matter of pure logic, many of the strongest arguments in favor of gay marriage—such as “how is anyone else harmed by my marriage?”—could apply to polygamy. But we do not see polygamy as driven by innate characteristics and do not believe we are harming polygamists by legally discouraging polygamy. Will there come a day when we view polygamy differently and an argument can be made that polygamy should be protected by the 14th Amendment? It’s difficult for me to conceive and I would wager heavily against it, but if that ever happens we can have that debate. For the time being, the question of whether the 14th Amendment protects the right of gay and lesbians to marry strikes me as a very easy one.

Now, to the “should.” As a believer in living Constitutionalism, I certainly believe the more norms-based component of public opinion should influence how the Court rules. Ideally, our Supreme Court Justices would be preternaturally wise, able to recognize universal and timeless truths. When they do recognize that the prevailing attitude of the day is incompatible with justice or with the Constitution, they should always be willing to rise above public opinion (here I respectfully disagree with Justice Ginsburg on Roe v. Wade, something I never expected to write). But they will always be men and women of their times, and as the times change they should be willing to cast aside the judgments of their predecessors.

SAM: And yet, the argument that the Justices should be willing to cast aside the judgments of their predecessors in accordance with the times is anathema to a constitutional originalist. In Justice Scalia’s scathing dissent in Lawrence v. Texas, which found a due process right to engage in consensual homosexual sex in the privacy of one’s home, Scalia argued that anti-sodomy laws reflected a “moral opprobrium that has traditionally attached to homosexual conduct” and wrote at length about the widespread historical criminalization of homosexual sex in the United States. He further argued that if Americans wanted gay sex to be legal, they should (and would) repeal sodomy laws, and that it was not the place of the Court to “invent” a new right to sodomy that, in Scalia’s mind, was harshly anti-democratic in light of the numerous bans on gay sex nationwide. I think that the greatest danger facing proponents of marriage equality face in the coming Court decisions is the possibility that the Court’s four arch-conservatives can persuade Justice Kennedy that the recent spate of pro-gay marriage laws proves that the democratic process is working, and that gay marriage is not an issue that need be imposed nationwide by an unelected Court.

[pullquote_left]Had the Warren Court not put a stop to racial segregation, when would the South have integrated?[/pullquote_left]

And yet therein lies the paradox. The modern conservative movement has sought to paint liberals as “elites,” the federal government as a paternalistic entity that thinks it “knows better” than Heartland Americans, and socially progressive court decisions as “judicial activism” imposed by lawmaking judges. But that is exactly what these institutions must do in order for us to evolve as a society. Had the Warren Court not put a stop to racial segregation by judicial fiat, when would the South have integrated democratically? I think there is a strong argument to be made that Jim Crow could persevere even today. Had the Roe v. Wade decision not legalized abortion, when would it have gone through at the state level? As we’ve seen in state after state after state after state, the conservative movement is doing its best to outlaw abortion even now. While many “liberal” states are now legalizing gay marriage, is there any doubt that this trend will take at least another generation, if not longer, to reach many of the “red states?”

An originalist would say that this doesn’t matter: our federal system requires strict fidelity to constitutional text and Framer-era social norms, and the fact that a particular social issue remains contentious is proof that America requires time to acclimatize to changing demographics and beliefs. But I would argue that this viewpoint tethers America to historical anachronisms and an inevitably regressive society. Many core social conservative values are rooted in traditions and belief systems that may seem out of touch with an increasingly diverse (in all aspects of the word) society: marriage is between a man and a woman, homosexuality is a moral failure, abortion is murder, religion (or more specifically, Christianity) deserves a greater role in the public sphere, etc. This is not to judge or otherwise demean these values, as they serve as the personal and spiritual moorings for a huge amount of Americans and, as matters of individual conviction, are not inherently destructive. But there is no denying that Americans are more diverse and less religious than ever before, and that at least some of these conservative values may be discarded in mainstream public discourse in the not-so-distant future. To an originalist, interpreting the Constitution in such a way that almost inevitably results in a conservative result is a tempting proposition.

But I would argue that while tempting, it is flawed. Rather, it should be the job of the Justices to recognize that political defiance, social prejudices, and religious belief may be a matter of inevitability at the individual level, but need not be constitutionally codified when doing so would result in legally sanctioned discrimination.

[pullquote_right]The Court should be cautious of the suspicion with which a democratic republic views nine individuals sitting above reproach.[/pullquote_right]

ANTHONY: The Jim Crow example you give is a good transition to addressing whether the popularity-based component of public opinion should influence the Court. At first blush, this seems like it should be an easy “no.” The Jim Crow example is a perfect illustration of why, while the Court should be receptive to shifting norms and new understandings, it should not look for majority support before deciding the Constitution mandates a certain outcome. But the health care example you mentioned earlier complicates the question. It introduces a new category to the conversation—public opinion regarding the Court itself rather than the issue before the Court. At the time of the Supreme Court’s health care ruling, most Americans were in favor of repealing “Obamacare,” though this was likely a result of a targeted campaign of misinformation rather than a true understanding of the law. Assuming the conventional wisdom about Justice Roberts’ motivations are correct, he wasn’t concerned that the result of Obamacare never taking effect would be unpopular; he was worried that the decision would look overly partisan and that the reputation and legitimacy of the Court would be damaged. And that’s probably healthy—the Court should be aware of its place in a democratic republic and cautious of the suspicion with which such a republic views nine individuals sitting above reproach. However, how to balance that against the charge to do justice and correctly interpret the Constitution is a pretty tough call.

From my left-wing perspective, Justice Roberts’ ruling on the Affordable Care Act and Justice Ginsburg’s comments on Roe v. Wade seem to be coming from opposite places. Justice Roberts avoided making a ruling that he knew (again, this is wild and partisan speculation on my part) to be unsupported by the Constitution and the Court’s precedent because such a ruling, while yielding a popular result, would be viewed by the public as partisan and illegitimate. Justice Ginsburg is saying the Court should have withheld making a decision she believes to be compelled by the Equal Protection and Due Process clauses of the 14th Amendment because the public was not ready for it, and the public’s opinion towards both the Court and abortion rights has suffered as a result. In the former example, if public opinion is a check on partisan shenanigans by the Court, then that’s certainly a good thing. The latter example is more problematic. For one thing, I think Justice Ginsburg is incorrect to suggest that the American public would have reached anything approaching consensus on abortion rights had the Court not ruled when it did. In line with what you discussed above, ten or twenty or thirty years before a ruling like Roe would have just meant another ten or twenty or thirty years of women struggling to find access to abortion—a state-by-state “race to the bottom,” if you will. Inviting the Justices to be calculating in how their opinions will drive public opinion is just inviting another area for them to make mistakes.

Coming back to gay marriage, the Justices should find that the 14th Amendment protects the rights of gays and lesbians to marry because our understanding of homosexuality has reached a point where we recognize that homosexual relationships are entitled to equal respect and dignity under the law as heterosexual relationships (not that they weren’t before; it just took many people time to come around). Had the Court reached that conclusion decades ahead of the general public, it would have been a decision to be celebrated. If the Court, or some of its Justices, reaches that decision today out of concern that a contrary decision will place them out of step with the public and behind the times, we should celebrate the result but recognize that it is the right result for the wrong reason.

[[1]]Of course, when hijacked by the Tea Party, this leads to predictably absurd results: for example, Rep. Steve King arguing that “The framers did not consider the babies of [illegal immigrants] when they framed the 14th amendment because we didn’t have immigration law at the time so they could not have wanted to confer automatic citizenship on the babies of people who were unlawfully in the United States,” despite the fact that the “Framers” didn’t draft the 14th Amendment and America has had immigration law since at least 1790. But we digress.[[1]]

[[2]]We are far from the first to point out the inherent weirdness of this approach to the law.[[2]]