On Marriage, "Simple Justice" Only a Matter of Time?

      The Supreme Court was no idle bystander in 1952 as school desegregation cases from five separate jurisdictions worked their way toward the nation’s highest tribunal. As Richard Kluger relates in his history Simple Justice, Chief Justice Fred M. Vinson personally called lawyers in cases from Delaware and the District of Columbia in the summer and early fall to suggest they file appeals with the court so that the cases could be consolidated with others already set for argument.
      The landmark decision in Brown v. Board of Education came nearly two years after those maneuverings following Vinson’s death and the masterly work by his successor, Chief Justice Earl Warren, to produce a unanimous ruling against legally enforced racial segregation. Sixty years later, the Supreme Court now seems on the verge of a similar landmark decision, also after deft maneuvering and legal delay, to recognize a constitutional right to marriage for same-sex couples.
      The Vinson Court was divided after oral arguments in the five cases in December 1952, but Kluger shows that a majority of the justices were ready immediately afterward to outlaw racial segregation and overrule the precedent that had sanctioned the practice, Plessy v. Ferguson (1896). One of the justices, Kentucky’s Stanley F. Reed, however, wanted to reaffirm Plessy; and three others — Vinson, Robert H. Jackson, and Tom C. Clark — preferred some kind of “wait-and-see approach.”
      The current justices were likewise divided during and after arguments in a pair of same-sex marriage cases in March 2013. The 5-4 majority in  United States v. Windsor (2013) favored same-sex couples by striking down the anti-gay Defense of Marriage Act (DOMA), but stopped short of recognizing a constitutional right to marriage for gay and lesbian couples. In the other case, Hollingsworth v. Perry (2013), a cross-ideological majority used a legal flaw to put off a direct ruling in the challenge to California’s Proposition 8.
      Three of the conservative justices, however, used their dissents in Windsor to make their views on the ultimate issue plain. Antonin Scalia, in an opinion joined by Clarence Thomas, said that limiting marriage to opposite-sex couples was justified by “moral disapproval” of same-sex relationships and by other “valid” rationales that he deemed so “boring” that he did not even list them. Separately, Samuel A. Alito Jr. said that the “heated debate” about same-sex marriage should be decided not in the courts but by “the people, acting through their elected representatives at both the federal and state levels.”
      Significantly, Chief Justice John G. Roberts Jr. kept his counsel on the issue. He dissented from the decision to strike down DOMA on both technical and substantive grounds, but he declined to join the sections in Scalia’s opinion defending same-sex marriage bans on their supposed merits.
      The Vinson Court put off the day of reckoning on racial segregation by asking for new arguments on the history of the Fourteenth Amendment, a ploy suggested by Justice Felix Frankfurter. Vinson’s death in October 1953 paved the way for Warren to preside over the rearguments in December and to guide the court into the unanimous decision handed down on May 17, 1954.
      A year-and-a-half of federal and state court decisions interpreting Windsor have provided the Roberts Court with more breathing space on the question of marriage equality. With near unanimity, lower courts have interpreted Justice Anthony M. Kennedy’s majority opinion in Windsor as fatally undermining the states’ arguments for limiting marriage to opposite-sex couples.
      Perversely, the gay rights victories put off a final resolution of the issue by a couple of months. When the justices gathered at the end of September, they decided not to hear appeals by states seeking to reinstate same-sex marriage bans that had been struck down in three federal circuits. In the three months since, the court has similarly allowed lower federal courts to bring same-sex marriage rights to other states, most recently in Florida. When the Florida ruling takes effect on Jan. 6, same-sex couples will be able to marry in a total of 36 states plus the District of Columbia.
      In November, however, the Sixth U.S. Circuit Court of Appeals upheld same-sex marriage bans enacted in four states: Kentucky, Michigan, Ohio, and Tennessee. Plaintiffs filed petitions for certiorari barely a week after, and three of the four states joined in urging the Supreme Court to issue a definitive ruling. The papers on the cases were distributed to the justices on Tuesday [Dec. 23] for them to consider at their Jan. 9 conference.
      In the normal course of events, the justices could agree that day or later in January to hear some or all of the cases, in time for arguments in April and a decision by the end of June. Conceivably, the justices could find some basis to push the issue to the next term, but any delay now would seem political rather than legal.
      Sixty years later, it seems inconceivable that the Supreme Court could have done anything in Brown other than outlaw racial segregation. The Roberts Court is unlikely to be unanimous on marriage rights: Scalia and Thomas have voted against allowing marriage rights to take effect on an interim basis. But the gay rights ruling that now seems only a matter of time may well strike future generations just as Brown does now as nothing more than “simple justice.”