Outside the Supreme Court on Wednesday.
As the justices of the Supreme Court struggled with the question of same-sex marriage this week, politicians in Congress kept handing down their own verdict. One after another, a series of lawmakers in recent days endorsed allowing gay men and lesbians to wed.
But momentum in the political world for gay rights could actually limit momentum in the legal world. While the court may throw out a federal law defining marriage as the union of a man and a woman, the justices signaled over two days of arguments 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 may become a victim of their own political success was underscored during arguments on Wednesday over the constitutionality of the Defense of Marriage Act. 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 deserving the protection of the courts.
Chief Justice John G. Roberts Jr. pressed that point with the lawyer for the plaintiff, a New York woman 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 the 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, even as the justices heard the case, Senator Kay Hagan of North Carolina on Wednesday became the latest red-state Democrat to announce her support for same-sex marriage. She followed Senators Claire McCaskill of Missouri, John D. Rockefeller IV of West Virginia, Jon Tester of Montana and Mark Warner of Virginia.
Senator Rob Portman of Ohio became the first Senate Republican to endorse marriage between same-sex couples. And former President Bill Clinton, who signed the Defense of Marriage Act in 1996, urged the justices to overturn it.
Ms. 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,” then pivoted to argue that despite that sea 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.
Even so, 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 J. Cooper, a lawyer representing opponents, said Tuesday.
Justice Anthony M. Kennedy, widely considered the decisive vote, has historically has been sensitive to the authority of states to set their own policies. During the closely watched arguments, he questioned the constitutionality of the Defense of Marriage Act but expressed skepticism that the court should issue a broad ruling in the separate 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. In the 16 years since the Defense of Marriage Act was enacted, polls show that strong public opposition to same-sex marriage has reversed into majority support.
Not only has Mr. Clinton repudiated the law, so has its Republican sponsor, former Representative Bob Barr of Georgia. No states allowed same-sex marriage at the time; now nine do, 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.
Still, about 40 states do not permit same-sex marriage, and most of them have constitutional bans approved by voters in recent years. Nine Democratic senators and all but one Republican senators oppose the practice. It was only last fall that the first state referendums approving same-sex marriage were passed by voters. As Justice Samuel A. Alito Jr. pointed out, nowhere in the world was same-sex marriage legal until the Netherlands passed a law in 2000.
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 now find their political power on the rise.
“The reason there has been a sea change,” said Paul D. Clement, a former solicitor general 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 Mr. Clement and his adversaries, the question remained whether they had persuaded the justices to follow that process or get out of the way.
Source:http://www.nytimes.com
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