On November 7, 2012, voters in Maine, Maryland, and Washington became the first in the country to approve same-sex marriage at the ballot box, ending a long-running streak of popular votes against marriage equality. On the same day, voters in Minnesota rejected a constitutional amendment that would have prohibited marriage for same-sex couples something California voters failed to do four years ago. Now that the popular vote has swung the other way, it is not simply the political calculus that has changed but the legal landscape as well. For opponents of same-sex marriage, their streak at the ballot box has supported their arguments against judicial intervention in favor of marriage equality. With these recent results, it becomes increasingly difficult to paint the judiciary and the US Supreme Court in particular as an overreaching, out-of-touch institution on the question of same-sex marriage. This new dynamic comes just as the Supreme Court prepares to consider the issue. The Court will soon announce whether it will review cases striking down the federal Defense of Marriage Act (DOMA) and California's Proposition 8.
In urging courts to rule against same-sex marriage claims, social conservative advocates argue that judges must not allow an endrun around democratic decision making. They point to their success in popular referenda to situate opposition to marriage equality as a shared American value, threatened only by the work of "unaccountable judges" and, increasingly, "out-of-touch legislators." Many judges credit these arguments. In dissenting from the recent US Court of Appeals for the Second Circuit decision striking down DOMA, Judge Straub concluded: "Courts should not intervene ... because doing so poisons the political well, imposing a destructive anti-majoritarian constitutional ruling on a vigorous debate." The Supreme Court in particular is told that any intervention against this strong majoritarian preference would trigger devastating backlash. Ordinary Americans would resist the Court's decision and thwart its implementation. The Court's overreaching would produce years of divisive politics and pose a grave threat to its own legitimacy. Through this lens, a decision in favor of same-sex marriage would be the next Roe v. Wade.
Taken on its own terms, the empirical validity of this claim is debatable. Scott Cummings and I have challenged the assumptions of the backlash thesis in the same-sex marriage context in California. Reva Siegel and Linda Greenhouse have cast doubt [PDF] on its operation in the abortion context. A judicial decision may more accurately be understood as merely one moment in a broader legal, political, and cultural contest.
But regardless of the backlash claim's accuracy, it loses much of its force in the same-sex marriage context when states affirmatively pass marriage equality laws at the ballot box. Opponents must struggle to cast judicial intervention in favor of same-sex marriage as democratically illegitimate. Instead, courts are now responding to broader electoral trends.
The argument from majoritarian preferences functions not only as an institutional claim making courts nervous about their power and legitimacy but also as a doctrinal claim that provides the legal justification for bans on same-sex marriage. For instance, proponents of Proposition 8 argue that upholding the will of the voters constitutes a sufficient governmental interest to justify restrictive laws. In other words, based merely on majoritarian preferences, courts can uphold same-sex marriage bans without considering the underlying substantive reasons. In this sense, the appeal to popular will glosses over indeed, it hides the more substantive reasons that same-sex marriage bans exist.
With voters now approving marriage equality, opponents face pressure in court to elaborate the substantive justifications they have in mind. These justifications involve discredited beliefs about lesbians and gay men and outmoded gender stereotypes about the roles of women and men. The notion that bans on same-sex marriage channel procreation and childrearing into married, dual-gender households will strike most Americans as not simply flimsy logic but also outdated thinking about the family. We have come to embrace much more diverse, egalitarian, and inclusive notions of marriage, family, and parenting. Marriage equality accords with this embrace. Ultimately, without arguments about popular will, social conservative activists may find that their substantive views on marriage and the family may alienate not only a majority of Supreme Court justices but also a majority of American voters.
Douglas NeJaime is an Associate Professor of Law at Loyola Law School in Los Angeles. His research focuses on sexual orientation and the law, social movements, family law, and constitutional law.
Suggested citation: Douglas NeJaime, Marriage, Direct Democracy and the Supreme Court, JURIST - Forum, Nov. 16, 2012, http://jurist.org/forum/2012/11/douglas-nejaime-marriage-direct-democracy.php
This article was prepared for publication by Ben Klaber, a senior editor for JURIST's academic commentary service. Please direct any questions or comments to him at email@example.com