So Gay, Inc. wins again. The establishment institutions of the gay legal movement, like Mary Bonauto’s Gay and Lesbian Advocates and Defenders and Evan Wolfson’s Freedom to Marry, long ago decided that the first gay marriage case to go to the Supreme Court should be a narrow challenge. They chose to attack the worst provisions of the federal Defense of Marriage Act (DOMA), which strip same sex couples like the plaintiff Edie Windsor legally married in their states, of all federal benefits. Windsor sought no nationwide ruling that the Constitution requires all states to marry gay couples. No gay Brown or Roe. No David Boies or Ted Olson. Just a small swipe at a bigoted statute that costs gay couples millions of dollars in extra income taxes every year.
The best part about the cautious strategy is that it invokes an interest that conservatives purport to care about: states rights. DOMA defining marriage as heterosexual-only is the sole federal law that takes the definition of marriage away from the states, where it has resided since the founding of the Republic. Not surprisingly, it was the states rights aspect of the argument that attracted the respectful attention of everyone’s favorite swing justice, the mercurial Anthony Kennedy on Wednesday.
Kennedy’s demeanor stands in sharp contrast to Tuesday, when he seemed clearly unhappy about having to decide the star-studded California gay marriage case. In the aftermath of the passage of the antigay marriage Prop 8 in California, a substantial number of gay activists decided that what they called “Gay, Inc.” was moving too slowly and deferentially to challenge the remaining barriers to gay rights. In a famous incident, Chad Griffin, current president of the Human Rights Campaign, and others joined forces to recruit the conservative lawyer Ted Olson to make a direct challenge to the California law, with the hope of scoring the gay Brown.
However, it seemed unlikely on Tuesday that they would score it. Why did we agree to review this, Kennedy asked his colleagues, during the argument on Prop 8, “in a case where the opinion is very narrow … and you're doing so in a case where there's a substantial question on standing[?] I just wonder if the case was properly granted.”
He seems to want to put the gay Brown off for another day. A practice younger than the cell phone, as Alito described gay marriage; sociological data not all in yet. Commentators after the argument took up their pens to accuse the Court of everything from inconsistency to cowardice. In fact, however, ducking is just the ticket. And it’s not a loss for the insurgent activists and their distinguished lawyers. It’s another win.
The Court can delay. Since 1988, the Supreme Court has had complete discretion to decide what it wants to hear. Although any four Justices can grant review, they need a fifth, probably Kennedy, for a decision. And if he decides review was all a terrible mistake, he can force them to dismiss it and roll the clock back to the decision in the Court of Appeals, which, though narrow, did strike down the antigay Prop 8. That’s a win.
Kennedy, and possibly others, also flirted with a ruling that the defendants, proponents of the original initiative, did not have Constitutional stature to defend the law, a doctrine called “standing.” In layman’s terms, defending laws after they pass is usually the job of the executive branch. But in Perry, the challenge to California's Prop 8, the governor and attorney general of California both declined to defend the law. The people behind the initiative, ProtectMarriage.com, stepped in instead. If the Court rules on standing, the case probably rolls back to the trial court’s decision striking down Prop 8. That’s a win.
Ducking has a long history in the half century of Supreme Court-led social change. In Naim v. Naim in 1955, twelve years before it made social and legal history in Loving v. Virginia, the Court ducked the intermarriage issue. Four years before Griswold v. Connecticut, the Court ducked a birth control case, Poe v. Ullman. In both cases, the “cowardly” Court used transparently strategic procedural doctrines to put off deciding. But in both cases, the unsuccessful litigation, however frustrating, still did enormous social and political labor.
Naim came one year after Brown. Brought by a visionary lawyer, David Carliner, who later won the first gay employment discrimination case, Naim would have forced the Court to decide the hottest racial issue as the nation was just digesting Brown. Even so, four of the justices argued vociferously to take it. When the Court finally rejected it, Justice Warren drafted but did not publish a scathing dissent. In the racially riven 1950s, the Court was hoarding its institutional capital.
Carliner, like Boies and Olson, simply demanded that the state of Virginia come to court and make arguments a court could consider. In Hollingsworth v. Perry, the result was the defendants’ stunningly unpersuasive evidentiary record, culminating when their own lawyer said he could think of no harm gay marriage might cause. Naim reduced the defendants to relying on the indefensible factual basis for the discriminatory scheme, in that case, eugenic “science.” Carliner stood up to and named the anti-miscegenation regime of the states of the Old Confederacy, and, within a decade, they were essentially the only states left with such laws. Naim also fueled the scathing criticism of the Court’s actions by Gerald Gunther, who would go on to be the most influential constitutional scholar of his generation. And Earl Warren, just appointed to the Court, used the arguments he had honed in Naim to produce the opposite result twelve years later in Loving.
Similarly in Poe v. Ullman, Justice Harlan’s dissent from the Court’s standing decision was a rough draft for his opinion four years later in Griswold, and, indeed, is one of the most-cited and influential opinions in the modern era. If the Court votes to duck on Perry, it may very well happen that Justice Ginsburg will write a similarly persuasive dissent. This feminist luminary cannot be pleased to see her egalitarian writings about the abortion case used to urge the Court, as several legal commentators have done, to withhold equal protection from another disadvantaged group like gay and lesbian people. Although she says she is staying on, time passes, and she is unlikely to see another case of this magnitude directly in the area of her legacy.
Linda Hirshman is the author of “Victory: The Triumphant Gay Revolution,” a New York Times Notable Book of 2012. She is at work on a book about Justices O’Connor, Ginsburg, and the achievement of legal equality for women.