Could SSM Political Success Doom Its Legal Success?

by Daniel Foster

I end my wrap of the oral arguments in the DOMA case by wondering whether Chief Justice Roberts will see same-sex marriage’s recent political success as an avenue to avoid delivering it definitive legal success in the form of major new equal protection jurisprudence. As was noted here yesterday, Roberts went as far as to point out that politicians seem to be “falling over themselves” to back SSM:

If the case is going to be decided on Equal Protection grounds, it’s going to be so decided in large part because the Court buys that the point of DOMA was discriminatory, and not just to clarify the meaning of a word in a bunch of statutes. Justice Kagan implied that she thinks the intent of DOMA was animus toward gays, and that is what Obama’s solicitor general, Donald Verrilli, explicitly argued:

Of course, this would appear to put Verrilli and the Obama administration in the awkward position of implying that, e.g., 84 United States senators and President Bill Clinton were homophobes, as Chief Justice Roberts pointed out.

Roberts later implied a skepticism that gays should in any event be treated as an oppressed class, on the grounds that the very change in public opinion toward same-sex marriage that opponents of DOMA rely on is itself the product of the “political effectiveness” of pro-same-sex-marriage groups. In the end, whether the Court finds heightened Equal Protection status for gays — and thus a basis for putting DOMA through the wringer — could, ironically, depend on whether five justices think the same-sex marriage movement has been too successful to warrant it.

In the New York Times this morning, Peter Baker wonders at much the same thing:

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.

That last sentence is the key. Ruling broadly in the DOMA case would require the Court to treat gays the same way it has treated, e.g., blacks in Equal Protection cases, applying “strict scrutiny” to any statute seen as aversely affecting them. That standard, and the protection of the courts, is reserved for groups who are thought not to have a fair shake in the political process. That was almost certainly true for gays in the past. But with the wild acceleration in polling toward a pro-gay marriage consensus, and an elected class in Washington that is, indeed, falling over itself to “evolve,” is it still true?

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