Shadow of Roe v. Wade Looms Over Ruling on Gay Marriage
March 23, 2013
By ADAM LIPTAK
WASHINGTON — When the Supreme Court hears a pair of cases on same-sex marriage on Tuesday and Wednesday, the justices will be working in the shadow of a 40-year-old decision on another subject entirely: Roe v. Wade, the 1973 ruling that established a constitutional right to abortion.
Judges, lawyers and scholars have drawn varying lessons from that
decision, with some saying that it was needlessly rash and created a
culture war.
Justice Ruth Bader Ginsburg, a liberal and a champion of women’s rights, has long harbored doubts about the ruling.
“It’s not that the judgment was wrong, but it moved too far, too fast,” she said last year at Columbia Law School.
Briefs from opponents of same-sex marriage,
including one from 17 states, are studded with references to the
aftermath of the abortion decision and to Justice Ginsburg’s critiques
of it. They say the lesson from the Roe decision is that states should
be allowed to work out delicate matters like abortion and same-sex
marriage for themselves.
“They thought they were resolving a contentious issue by taking it out of the political process but ended up perpetuating it,” John C. Eastman,
the chairman of the National Organization for Marriage and a law
professor at Chapman University, said of the justices who decided the
abortion case. “The lesson they should draw is that when you are moving
beyond the clear command of the Constitution, you should be very
hesitant about shutting down a political debate.”
Justice Ginsburg has suggested that the Supreme Court in 1973 should
have struck down only the restrictive Texas abortion law before it and
left broader questions for another day. The analogous approach four
decades later would be to strike down California’s ban on same-sex
marriage but leave in place prohibitions in about 40 other states.
But Theodore J. Boutrous Jr., a lawyer for the two couples challenging
California’s ban, said the Roe ruling was a different case on a
different subject and arose in a different political and social context.
The decision was “a bolt out of the blue,” he said, and it had not been
“subject to exhaustive public discussion, debate and support, including
by the president and other high-ranking government officials from both
parties.”
“Roe was written in a way that allowed its critics to argue that the
court was creating out of whole cloth a brand new constitutional right,”
Mr. Boutrous said. “But recognition of the fundamental constitutional
right to marry dates back over a century, and the Supreme Court has
already paved the way for marriage equality by deciding two landmark
decisions protecting gay citizens from discrimination.”
The author of the majority opinions in those two cases, Justice Anthony
M. Kennedy, seemed to address the new ones in wary terms in remarks this month in Sacramento.
“A democracy should not be dependent for its major decisions on what
nine unelected people from a narrow legal background have to say,” he
said.
In Justice Ginsburg’s account, set out in public remarks and law review articles,
the broad ruling in the abortion case froze activity in state
legislatures, created venomous polarization and damaged the authority of
the court.
“The legislatures all over the United States were moving on this question,” Justice Ginsburg said at Princeton in 2008. “The law was in a state of flux.”
“The Supreme Court’s decision was a perfect rallying point for people
who disagreed with the notion that it should be a woman’s choice,” she
added. “They could, instead of fighting in the trenches legislature by
legislature, go after this decision by unelected judges.”
That general view is widely accepted across the political spectrum, and
it might counsel caution at a moment when same-sex marriage is allowed
in nine states and the District of Columbia and seems likely, judging
from polls, to make further gains around the nation.
“Intervening at this stage of a social reform movement would be somewhat
analogous to Roe v. Wade, where the court essentially took the laws
deregulating abortion in four states and turned them into a
constitutional command for the other 46,” Michael J. Klarman, a law
professor at Harvard, wrote in a recent book, “From the Closet to the
Altar: Courts, Backlash and the Struggle for Same-Sex Marriage.” Mr.
Klarman was a law clerk to Justice Ginsburg when she served on the
federal appeals court in Washington.
But an article that will appear in Discourse,
an online legal journal published by The UCLA Law Review, proposes a
different account. “The Roe-centered backlash narrative, it seems, is
the trump card in many discussions of the marriage cases,” wrote Linda
Greenhouse, a former New York Times reporter who covered the court and
now teaches at Yale Law School, and Reva B. Siegel, a law professor
there.
“Before Roe,” they wrote, “despite broad popular support, liberalization
of abortion law had all but come to a halt in the face of concerted
opposition by a Catholic-led minority. It was, in other words, decidedly
not the case that abortion reform was on an inevitable march forward if
only the Supreme Court had stayed its hand.”
After the decision, they added, “political realignment better explains
the timing and shape of political polarization around abortion than does
a court-centered story of backlash.”
In an interview, Professor Siegel said court decisions concerning same-sex marriage had played a valuable role.
“It is nearly two decades since courts in Hawaii, Massachusetts and
other states began a national conversation about marriage,” she said.
“There has been over the course of this long period a dramatic,
revolutionary change in popular understanding of marriage equality.
Courts can inspire resistance but also can teach.”
Professor Klarman said it was not clear that a decision requiring
same-sex marriage throughout the nation would give rise to the kind of
sharp opposition that followed the abortion ruling.
“For abortion opponents, abortion is murder, which means the intensity
of their commitment to resisting Roe was considerable,” he said in an
interview. “For the gay marriage opponent in, say, Mississippi, how will
their lives change if the openly gay couple living down the street can
now obtain a marriage license?”
There is a range of possible outcomes in the case on California’s ban on
same sex marriage, Hollingsworth v. Perry, No. 12-144. The court could
uphold the ban; reject it on grounds that apply only to California or
only to eight states; or establish a nationwide right to marriage
equality. Or the court could say it is powerless to render a decision on
the merits.
That last option would follow from the odd path the case took through
the courts. After a trial judge struck down the California ban, from the
voter initiative Proposition 8,
and entered judgment against state officials, the officials declined to
appeal. Supporters of Proposition 8 did appeal, but it is not clear
that they have suffered an injury direct enough to give them standing to
appeal.
The trial court’s judgment came in 2010 from Judge Vaughn R. Walker of the Federal District Court in San Francisco. During closing arguments in the case,
Judge Walker made it clear that he, too, was working in the shadow of
the abortion ruling. He said the Roe case “has plagued our politics for
30 years” because “the Supreme Court has ultimately constitutionalized
something that touches upon highly sensitive social issues.”
“Isn’t the danger,” Judge Walker asked Theodore B. Olson, a lawyer for
the two couples challenging the ban, “not that you are going to lose
this case, either here or at the court of appeals or at the Supreme
Court, but that you might win it?”
How the Court Could Rule on Same-Sex Marriage
The Supreme Court heard arguments on Tuesday and
Wednesday in two cases about same-sex marriage. While Tuesday’s argument
on California’s ban on gay marriage was murky, Wednesday’s case was
more clear, as the justices seemed ready to strike down a central part
of the Defense of Marriage Act that bans federal benefits to gay
spouses.
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