As the Supreme Court justices struggled with the question of same-sex marriage in two cases this week, politicians in Congress kept handing down their verdict, with a series of lawmakers in recent days endorsing gay marriage.
Momentum in the political world for gay rights could limit momentum in the legal world. Although the court might throw out the central part of the federal law defining marriage as the union of a man and a woman, the justices signaled during arguments this week that they might not feel compelled to intervene further, since the democratic process seems to be playing out on its own, state by state, elected official by elected official.
The prospect that gay-rights advocates might become a victim of their own political success was underscored during arguments Wednesday over the constitutionality of the Defense of Marriage Act (DOMA). Opponents of the law were left to make the paradoxical argument that the nation has come to accept that gay men and lesbians deserve the same right to marriage as heterosexuals while maintaining that they are a politically oppressed class.
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Chief Justice John Roberts pressed that point with the lawyer for the plaintiff, Edith Windsor, a New Yorker suing to recover federal estate taxes she would not have had to pay had her spouse been a man.
“You don’t doubt that the lobby supporting the enactment of same-sex-marriage laws in different states is politically powerful, do you?” he asked the lawyer.
For purposes of the law, said Windsor’s lawyer, Roberta Kaplan, “I would, your honor.”
“Really?” the chief justice asked skeptically. “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
Indeed, as the justices heard the case, Sen. Kay Hagan of North Carolina on Wednesday became the latest red-state Democrat to announce her support for same-sex marriage. She followed Sens. Claire McCaskill of Missouri, Jay Rockefeller of West Virginia, Jon Tester of Montana and Mark Warner of Virginia.
Sen. Rob Portman of Ohio became the first Senate Republican to endorse marriage between same-sex couples. And former President Clinton, who signed DOMA in 1996, urged the justices to overturn it.
Kaplan, who moments earlier had been arguing that “there has been a sea change” in the United States in “the understanding of gay people and their relationships,” pivoted to argue that despite that change, gay men and lesbians are still subject to discrimination. “No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have,” she said.
The rapidly changing political environment gives the justices a reason — should they want one — to sidestep imposing a national standard and leave the matter to the states.
On the defensive, at least politically, opponents of same-sex marriage were left to ask the justices to leave it up to the political arena. “We would submit to you that that question is properly decided by the people themselves,” Charles Cooper, a lawyer representing opponents of gay marriage, said in arguments in the California case Tuesday.
Justice Anthony Kennedy, widely considered the decisive vote, historically has been sensitive to the authority of states to set their own policies. He questioned the constitutionality of DOMA on Wednesday but expressed skepticism that the court should issue a broad ruling in the California case heard Tuesday that would be the vehicle for finding a national right to same-sex marriage.
While framing its decisions on law and principle, the court has always been attuned to public opinion and periodically debates how much evolving national mores ought to influence the interpretation of a two-century-old Constitution.
In the case of same-sex marriage, the political currents have shifted so quickly that the justices seem wary of jumping into the rapids. Polls show that in the 16 years since DOMA was enacted, strong public opposition to same-sex marriage has reversed into majority support.
Clinton has repudiated the law, as has its Republican sponsor, former Rep. Bob Barr of Georgia. No states allowed same-sex marriage at the time; now nine do — including Washington — and the District of Columbia. The half-dozen senators who endorsed such unions in recent days bring the number of supporters in the upper chamber to 47 out of 100. Nine Democratic senators and all but one Republican senator oppose the practice.
For the court, the question of political power is important, as it decides what standard to use in deciding whether the laws before it are unconstitutionally discriminatory. Gay-rights advocates are seeking a “heightened scrutiny” standard similar to that applied to gender discrimination, meaning that a law must be substantially related to an important government interest.
The test of such scrutiny includes the history of discrimination against a group and its relative political power. Despite a history of discrimination, gay men and lesbians are finding their political power on the rise.
“The reason there has been a sea change,” said Paul Clement, who argued on behalf of the Defense of Marriage Act, “is a combination of political power, as defined by this court’s cases as getting the attention of lawmakers; certainly they have that. But it’s also persuasion. That’s what the democratic process requires. You have to persuade somebody you’re right.”
For Clement and his adversaries, the question remained whether they had persuaded the justices to follow that process or get out of the way.