Following the first day of oral arguments before the Supreme Court, some gay-rights activists fear the justices seemed hesitant to rule broadly on the constitutional right for same-sex marriage. But one scholar believes that might be fine for now.
Jonathan Rauch, a guest scholar at the Brookings Institution and a contributing editor at National Journal, argues that a Supreme Court ruling that establishes the right of marriage for same-sex couples before the public comes around to that opinion could harm the gay-rights movement.
Edited excerpts from the conversation with National Journal follow.
NJ: How do you see the Supreme Court arguments going so far?
RAUCH: I really didn’t hear five votes for anything. The justices sounded like they didn’t see a strong way to decide the case on the law. So, they looked at the underlying politics, and there they didn’t like much of what they heard either. One side just said, leave this decision to the political process, but that opens the door to tyranny of the majority at the expense of gay people. On the other hand, they also weren’t comfortable with the claim that there’s an absolute civil right to same-sex marriage everywhere right now. Even Justice [Anthony] Kennedy, who’s a swing vote, said we’re in uncharted waters. Even Justice [Sonia] Sotomayor raised qualms with it.
The administration offered them a third route, which says overturn Proposition 8 because California gave gay people everything except marriage. So, that argument has legal coherence: You can’t decide to do everything for someone and then withhold the last, little bit. But politically, that seemed worst of all from [the justices'] point of view because it punishes anyone who tries to compromise.
The thing that they liked the best was this off-ramp, which is a technical decision based on standing, in which they rule that because the state of California did not appeal a lower-court decision the plaintiffs don’t have the standing to go to the Supreme Court. A lower-court decision therefore stands, Prop 8 gets overturned, but the decision applies only to California. They didn’t like that either, because it lets state officials game the appellate system, but I didn’t see five votes for anything else.
NJ: Since there aren’t five votes, will the issue of same-sex marriage continue in the court system for years to come?
RAUCH: This is not the end of the argument constitutionally. Prop 8 would die, which doesn’t really matter because California would repeal it pretty soon anyway. Other states would continue to debate gay marriage, and some day it would come back to the Supreme Court in another case.
NJ: You’ve previously argued that an early Supreme Court decision could harm the gay-rights movement nationwide politically. Do you still argue that?
RAUCH: A broad decision that establishes gay marriage right now as a constitutional right is risky for gay people. It might lead to a big backlash among people who resent the Supreme Court's take over this issue. Even if it didn’t, it might deprive gay people of the larger political victory that we’re in the process of winning by taking our case to the political system.
Durable rights don’t come from court. They come from consensus, in my opinion. That’s the real foundation. In establishing consensus, the court that matters is the court of public opinion. We have just started to win there. A legal decision in the Supreme Court that goes all the way to a broad ruling imposing same-sex marriage now might actually in the long run be less good for our marriages and our civil rights than waiting a few years and winning politically. Politically speaking, there’s a good case for a narrow victory, where the Court overturns Proposition 8 on a technicality, but the decision applies to California and it saves the big issue for another day.
NJ: What is the biggest concept to understand when following this issue?
RAUCH: What we’re having in this country is a debate about the meaning of marriage, not just gay marriage. That debate isn’t over. Public opinion is changing very quickly and it hasn’t stabilized, which is one reason I worry about the Supreme Court coming in prematurely. I am pro-gay marriage, and there are a lot of people on my side who are already counting their chickens, but not all the chickens have hatched. This debate is not over in my opinion. It’s tipping, but not over. We have a ways to go.