A Constitutional Right Deferred

As best I can tell, there were two conversations going on at the Supreme Court in today's oral arguments about gay marriage. One was on the actual merits of the issue: does the Constitution permit state marriage laws which exclude same-sex couples? And... there doesn't seem to be that much doubt that the Court thinks it does not allow this. I mean, somewhere between three and four members of the Court clearly think that it does allow this, but it doesn't seem like Anthony Kennedy, whose vote will definitely be crucial, had really any patience for the purported arguments in favor of the exclusionary state laws. He said something, for instance, about how the states' focus on the need to foster child-rearing was an interesting argument that, unfortunately, rested on totally untrue factual premises. It's really pretty clear that there aren't five votes right now to uphold these laws.

But there was also the other conversation: is the time right to declare these laws unconstitutional? This has been a popular theme in discussion about gay marriage, whether it's appropriate for the judiciary to step in and take the issue out of the hands of the democratic process. Or, alternately, at what point in the process of increasing social acceptance of homosexuality the courts should step in. A too-early ruling, the thought is, would fail to garner widespread acceptance and might spark a backlash. On this view, the courts should only declare anti-gay marriage laws unconstitutional once we can fairly say that the national conversation on the issue has concluded with a verdict in favor of marriage equality, such that all the courts are doing is enforcing that newly-forged national consensus on a few recalcitrant states.

What nonsense.

Here's the legal argument against the constitutionality of these marriage laws. The Fourteenth Amendment guarantees the principle of equal citizenship, and in particular of birth equality. Sexual orientation seems to be at least in large part a matter of birth status; people are innately gay or straight or whatever else they may be, and cannot simply decide to change whom they're attracted to.* Laws which visit disadvantage specifically upon gay people qua gay people, therefore, violate the Fourteenth Amendment's guarantee of birth equality and equal citizenship. The only question, then, in these gay marriage cases is whether exclusionary marriage laws do visit disadvantage specifically upon gay people qua gay people; another way to put it might be to ask whether they have the purpose, effect, and social meaning of marking gay people/couples as inferiors. No sane person conversant with general American culture could possibly suggest that they do not. Hence, the laws are unconstitutional. If all of this sounds eerily familiar, it's because it's the same basic argument against racial segregation circa 1954.

This argument is, y'know, timeless. The Fourteenth Amendment has been there for coming up on 150 years. The birth equality principle has been there that whole time. Orientation is a matter of birth status, and probably has been since the dawn of human civilization. It's conceptually possible that whether exclusionary marriage laws have the purpose, effect, or social meaning of marking gays as inferior could have changed over time, but I don't think anyone seriously contends that it has. That is to say, if we think these laws are unconstitutional today, then they were unconstitutional yesterday, and the day before that, and on June 26th, 2003 (when Lawrence v. Texas was decided), and on June 30th, 1986 (when Bowers v. Hardwick was decided), and on May 17th, 1954 (Brown v. Board), and on April 14th, 1873 (The Slaughter-House Cases). And that means that on all of these dates, any gay couple who walked into their county clerk's office and demanded a marriage license had a legal right to it, a legal right rooted in the Constitution of the United States. What that means is that when the clerk denied them their license, they should have been able to walk into their local court (ideally state courts would cooperate with this, but the federal district courts at the very least) and have their legal constitutional right vindicated. That's what courts do. They are very much not there to decide abstract questions of policy, such as, is this the right time for society to adopt equal marriage laws. They are there to decide cases or controversies and to award relief to injured parties to vindicate their constitutional rights. The gay couple walks into court claiming a right to a marriage license, the state responds that, under its laws, they have no such right, the gay couple responds that those laws are null and void because contrary to the Fourteenth Amendment's guarantee of equal citizenship. There's a controversy between adverse parties as to what the law is, with a specific valuable thing at stake. And, to borrow a phrase, it is emphatically the province of the judicial department to say what the law is. If the federal courts agree with the plaintiffs' view of the law, and think that the state's marriage laws do in fact violate the Fourteenth Amendment, they are to bloody well say so, and order the state to issue the goddamn marriage license. That's what courts are for; that's what constitutional rights are for. Obviously if the courts think that the right claimed is not a genuine one, they shouldn't award the relief. But if they think the right is valid, that's the end of it. They should not, must not allow what they consider to be a wrongful and unconstitutional deprivation take place because of some amorphous prudential considerations about whether the "time is right" or whether the democratic process oughtn't be allowed to play out some more. Failing to grant relief on such grounds is, I believe, no less than a dereliction of judicial duty.

Perhaps a dream deferred explodes. A constitutional right deferred, however, doesn't explode, or sag, or crust over, or stink, or fester, or dry up, or otherwise decay. It just sits there, waiting, patiently, in the Supreme Law of the land, just hoping that one day some court will finally notice it and put a stop to all those exploding dreams off in the background.



*I have some feeling that the principle of birth equality needs supplementing by some notion of what the government mayn't legitimately require people to change. That is to say, I don't think it would really make a difference if orientation were a matter of choice; it's a choice the state has no legitimate business interfering in. Suppose, for instance, some state had a law saying that couples who had cohabited prior to marriage couldn't get married; I would think this law unconstitutional, not because cohabitation is a matter of birth status but because the choice whether or not to cohabit is a private one constitutionally insulated from state interference (I believe).