Friday, January 23, 2015

Democracy, Rule of Law, and History: Factors Playing Into Supreme Court Same-Sex Marriage Litigation

     The 2014 Supreme Court term is shaping up to be more dramatic and eventful than the previous.  As some have pointed out, last year’s “blockbuster” case was a non-constitutional challenge to the Affordable Care Act that virtually did not affect the structure of the law as a whole.  This term, on the other hand, has another challenge to the law (King v. Burwell) that could deal a blow to millions of the law’s beneficiaries if the Supreme Court rules their subsidies violate the law.  Despite King’s implications, it will not be the blockbuster case of the term that the nation will be watching. 

     The Supreme Court stated last Friday that it will finally rule on the constitutionality of same-sex marriage.  Specifically, the Court will examine two questions paired with four cases; 1) does the Constitution’s 14th Amendment guarantee same-sex marriage and; 2) does the 14th Amendment compel all states to recognize the marriage of same-sex couples.
Both proponents and opponents of same-sex marriage have been urging the Court to definitively weigh-in on this issue to decide if, in fact, the Constitution protects same-sex marriage.  It was unclear following the Court’s parochial ruling in June 2013 that struck down the Defense of Marriage Act if the Constitution guaranteed such a right. 

     While speculating the outcome of a decision has proven to be a fool’s errand in the past, given the Court’s cryptic nature, time is better spent analyzing a few growing trends and factors that might affect a decision likely to come down in June. 

     There has been a recent spat in various states concerning democratic ballot initiatives and the rule of law.  States where same-sex marriage bans were voted on by a majority of the public argue that courts have no place meddling in the democratic values on which this country was founded.  Once again, federalism is thrust into the fray.  Proponents of state sovereignty have maintained that the issue of marriage regulation is one typically left to the states.  For those who voted to ban same-sex marriage in their states, the notion that the Supreme Court can come in and effectively nullify their say in government is completely antithetical to the values of the country. 

     This issue came to a head last term when the Supreme Court examined whether the constitutional ban on affirmative action voted on by Michigan’s citizens violated the Constitution’s Equal Protection clause found in the 14th Amendment (as a brief side note, the Court made a point to indicate that they were not ruling on the “constitutionality, or the merits, of race-conscious admissions policies” but rather the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of such racial preferences”).  The Court ruled in favor of Michigan’s voters writing, “By approving Proposal 2 and thereby adding §26 to their State Constitution, Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns about a policy of granting race-based preferences.”  Justice Anthony Kennedy writing for the plurality of the Court stated, “The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.” 

     Justice Sonia Sotomayor vehemently disagreed with the plurality’s decision writing in a scathing dissent championed by liberal advocates that, “Under our Constitution, majority rule is not without limit. Our system of government is predicated on an equilibrium between the notion that a majority of citizens may determine governmental policy through legislation enacted by their elected representatives, and the overriding principle that there are nonetheless some things the Constitution forbids even a majority of citizens to do.”  Supporters of same-sex marriage agree on this principle – that the 14th Amendment protects certain rights that can never be taken away even by a majority of citizens.     

     However, the issue of intent could prove pernicious for supporters of same-sex marriage.  Under certain schools of legal interpretation, some have argued that the 14th Amendment does not guarantee equality of all.  For clarification, the Equal Protection clause reads:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 
     That said, some originalist interpretations – a reading of the Constitution that follows a very strict and fixed reading of the framers’ text – believe that Congress did not intend for the 14th Amendment to apply to same-sex marriage protections.  The amendment was officially adopted in 1868 following the Civil War and sought to address the issue of slavery and rights of recently freed slaves.

     Michael Rappaport, law professor at the University of San Diego Law School, maintains that “While modern law treats the Clause as protecting against all unequal laws, that is not the way the language reads.  The language says no state shall deprive any person of the equal protection of the laws.”  The “laws” Rappaport contends are preexisting rights and thus the 14th Amendment does “not protect against all unequal laws,” but instead the failure of the state to protect people’s preexisting rights.

     This sentiment is also shared by Justice Antonin Scalia.  Writing in the University of Pennsylvania’s “Journal of Constitutional Law,” associate law professor at the University of Nebraska College of Law Eric Berger points out, “Justice Antonin Scalia and others have argued sometimes that both the framers and ratifiers of the Fourteenth Amendment expected the Equal Protection Clause to protect against racial discrimination but not sex discrimination.  Contemporary Equal Protection Doctrine clearly extends to sex discrimination, but it is certainly plausible that neither the framers nor the ratifiers of the Fourteenth Amendment understood themselves to be protecting women from sex discrimination, which was widely accepted at the time.”  Though, Berger noted that “The more persuasive reading…is that the Fourteenth Amendment ‘bans all systems of caste and of class-based lawmaking,’ including, of course, sex discrimination. We, thus, have an instance where original expected application likely yields an opposite outcome from original public meaning.” 

     Intent is a very important issue as the Supreme Court ruled last term that legislation codifying the Chemical Weapons Convention treaty could not be applied at the local level.  Recently, a woman poisoned her husband’s lover using a highly toxic chemical and was thus charged with violating federal law for using chemical weapons.  The Court determined, among other things, that Congress did not intend the small scale chemicals or maliciousness of the crime to apply to the law.  The Court stated that the types of chemicals the petitioner used were not synonymous with chemical weapons in the traditional sense, especially within the scope of the treaty.   

     A large faction of the American public will be anticipating the Court’s ruling on same-sex marriage at the end of the term.  It is unclear what the breakdown of the Court could be but one thing is clear – this will likely be one of the most influential rulings in a generation.    

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