Two professors, two takes on the Massachusetts gay marriage ruling

The Massachusetts Supreme Judicial Court decision in Goodridge v. Department of Public Health last fall has allowed gay marriage in the commonwealth–at least for now. The ruling has been hailed by some as courageous and lambasted by others as judicial activism. The Bulletin asked two HLS constitutional law experts, Laurence Tribe ’66 and Richard Parker ’70, for their views.

Bulletin: On the 50th anniversary of Brown v. Board of Education, how do you predict Goodridge will be thought of in half a century?

Professor Laurence Tribe: I would expect Goodridge at mid-century will look very much like the California Supreme Court’s pathbreaking 1948 ruling on interracial marriage looks today: like a decision that prefigured things to come.

Professor Richard Parker: How Goodridge is thought of 50 years from now will depend on what happens in the meantime.

In 50 years, gays and lesbians may be (I hope) fully integrated into the American community. Same-sex marriage may be legal in every state. That future is eminently imaginable. It is in keeping with the narrative of one-way “progress” that we sometimes tell ourselves as if it were a law of history. If that is what happens, Goodridge may very well be celebrated as the crucial step between here and there. It will be mainly lawyers, though, who celebrate it as such.

We lawyers often “forget” that it is politics that drives and legitimates changes in the law, not vice versa. At bottom, even judge-made law is in and of politics. Its success is not a matter of hurling a lightning bolt from “above.” To take root and effect it must have, or soon win, popular support. Thus it is–and should be–tethered to democratic politics. Political actors–whether a president, a legislature or a court–must draw on, and participate in, a typically gradual process of public persuasion. The 50-year struggle over “enforcement” of Brown illustrates the point. The same will hold true for Goodridge … in the event that it is, in fact, counted a “success” in 2054.

More than a realistic estimation of judicial influence is at stake here. The notion that court mandates, by themselves, “disentrench” the political status quo or “catalyze” political change isn’t just a self-serving mistake. It nurtures a perverse idea that it is the very mission of courts to act “heroically” by doing unpopular things–defying public opinion or coercing it. The idea is perverse because it is antidemocratic and because it tends to be self-defeating. Today, some who celebrate Brown misrepresent it by wrapping it in a story of judicial “heroism.” They thus mislead those who are inspired by Brown. It may be that some such judicial triumphalism influenced the majority in Goodridge–and this misconception may turn out, in the end, to affect its fate.

One thing you know about politics is that you never know, for sure, what is going to happen. What if–as a matter of political preparation and timing–Goodridge “came too soon” or “went too far too fast”? What if it is widely experienced as imposing the values of a privileged, unelected minority on a majority? What if a powerful “backlash” movement develops, as the right-to-life movement developed after Roe? What if, in response, barriers to gay and lesbian equality are set up by state or federal legislation or constitutional amendments? Might not Goodridge be fingered, then, as the crucial step between here and there? If so, its significance might again be exaggerated. But no more so, surely, than in the other story, the story of court-driven “progress.”

There’s another dimension, then, on which Goodridge might be remembered. It might be remembered as emblematic of a period in which self-styled legal “progressives” lost touch with the lessons of legal realism and the values of majoritarian democracy. Its formalist rhetoric is at odds with the open, controvertible argument of Brown. The peremptoriness of its claim to find something radically new in generic abstractions of a state constitution without much attention to anything in particular about that constitution or that state–along with the sloppiness, even the cynicism, of its supposedly value-neutral “rational basis” standard of review–looks disingenuous enough now. How will the opinion look once the drama of the moment has passed? Its tone of righteous command-and-control and its disrespect for electoral and legislative politics–its too easy willingness to attribute irrationality and prejudice to people embracing a traditional idea of marriage–are startling enough today. Might it seem, in 50 years, as arrogant as the antipopular prejudice of an 18th-century aristocrat?

It’s not too soon, now, to turn a cool eye on Goodridge, however much we believe in the justice of its mandate. Even those who assume an inevitable Onward March of Equality ought to think about it twice, so long as the March, in their mind, includes political equality–which is to say, one person, one vote; which is to say, majority rule.

In 1948, the California State Supreme Court was the first state high court to declare a ban on interracial marriage unconstitutional, despite strong public opposition. How does the Goodridge decision compare?

Tribe: To 14-year-old Emmett Till, a black boy lynched and murdered in Mississippi in 1955 because he had dared to say “Bye-bye, baby” to a white woman, and to 21-year-old Matthew Shepard, a gay white boy robbed, beaten senseless, and then tied to a fence and left to die in Wyoming in 1998 for being gay, the differences between the history and structure of white supremacy from chattel slavery to the Black Codes to Jim Crow, and the structure and history of homophobia, gay-baiting and gay-bashing weren’t awfully important. At bottom, both were the innocent victims of a bigotry born of fear, hammered into hate, ignited by rage and, in the end, enacted as death.

When I’ve compared the ban on interracial marriage that the U.S. Supreme Court didn’t strike down until 1967 with the ban on same-sex marriage, I’ve sometimes been told that I’m mixing apples and oranges because the laws against so-called miscegenation reflect the view that persons of African-American descent are inferior and would pollute the proud genetic heritage of the Aryan race, whereas the refusal to recognize same-sex unions as forms of marriage need cast no aspersions on gays when it merely reflects the basic nature of things. We’ve all heard the mantra: “It was Adam and Eve in the Garden of Eden, not Adam and Steve.”

Of course, from Steve’s perspective, being told that it’s not enough for him and Adam to love one another and to commit to one another until death do them part because Steve is a gay male rather than a straight female (and that, in such circumstances, Steve and Adam will just have to be content–at best–with something called a “civil union”) must feel like Eve’s being told she can’t marry Adam either because she’s white and Adam is black–nothing against her as a white woman, you understand; after all, the rule is no less a restriction on the liberty of black men.

Some, ignorant of history, say that, when California’s highest court saw through the phony symmetry of the ban on interracial marriage in 1948, a great majority of the nation’s electorate had already come to the same conclusion, so the court wasn’t making new law so much as it was ratifying an existing consensus. But the truth is that, as late as 1958, polls reported more than 95 percent of whites still disapproving of marriages between blacks and whites. If anything, therefore, the SJC hasn’t ventured as far beyond the consensus as its California precursor had.

Nor is there much to the argument that the mixed-sex character of the marital unit simply “feels” more deeply woven into the “marriage” concept itself than could ever have been said about the same-race character of a marital unit. In December 1912, when Representative Seaborn Roddenbery of Georgia proposed a constitutional amendment to uphold the sanctity of marriage–an amendment that would have said “Intermarriage between Negroes or persons of color and Caucasians . . . is forever prohibited”–he spoke in terms that should make proponents of a federal marriage amendment, designed to overturn decisions like Goodridge and to prevent their ilk from seeing the light of day again either under any state constitution or under the U.S. Constitution, feel right at home. The Roddenbery Amendment was said to be necessary to “exterminate now this debasing, ultrademoralizing, un-American and inhuman leprosy.” Such “marriages” were that in name only to Mr. Roddenbery. They were, in truth, “abhorrent and repugnant” counterfeits of the “sacred marital estate.”

I don’t want to overstate the parallel. No doubt some who have nothing against gays or lesbians and who wouldn’t mind learning that their sons were gay or their daughters were lesbians–people who don’t want to force anybody back into the closet and who’d be happy to accord same-sex couples civil unions possessing every legal incident of marriage–simply balk at extending the “M” word to a relationship they think is neither better nor worse than marriage, simply different. But the issue isn’t resolved by good intentions, which we all know can pave one hell of a nasty road. Decisive is the fact that, intended or not, the signal sent to the same-sex couples who are relegated to the “separate but equal” status of civil union is that their relationship is at best a facsimile of the real thing: a good copy, maybe, but ultimately fake. Using a state’s legal system to deliver such a signal of second-class status is inconsistent with the most basic axioms of equal citizenship.

Parker: Again, this question suggests judicial-triumphalism. Being “the first” to do something which is analogized to something “first” done by a state court combating racial oppression, something that ultimately won out to become the law of the nation, certainly sounds good. In the Goodridge opinion itself, the analogy to antimiscegenation laws is waved like a flag to be followed into battle. What if we look at it as an argument rather than a flag? Shouldn’t we consider whether to distinguish a supposed precedent before jumping to follow it in a very different context?

What I have in mind is not a comparison, on the facts, between degrees of oppression of African-Americans, on one hand, and of gays and lesbians, on the other. Nor is it a comparison between the significance of barriers to marriage in the two contexts. Though there are differences along these lines, and though none were addressed by the Goodridge court, what I have in mind, instead, is a comparison between the decision in Goodridge and the California decision in Perez–and ultimately the U.S. Supreme Court decision in Loving–as political decisions, political actions.

This kind of comparison is the most difficult. The reason is that politics is more complicated than logic or even social history. It calls for context-sensitive judgments of strategy and tactics, an assessment of preparation and timing, of what resistance may be anticipated and overcome, what popular support gained, by what actions and arguments, and when. I don’t know enough about California in 1948 to make a satisfactory comparison. But I know a little, and I know the standard against which to make the comparison: Was the law that the court attacked already politically weak enough to allow for judicial success? Was public opinion ready to entertain, then embrace, the judicial mandate? Courts, I think, should push only on doors that are ajar, that the people are already prepared to pass through–not on doors that, for the moment, are firmly shut, much less ones that may well be locked in response to an unexpected judicial push.

Consider the situation facing the California court. In 1948, interracial marriage was already permitted in more than one-third of the states. The decision to permit it had been made by legislatures, not courts. Among the remaining states, California’s antimiscegenation law was unique–uniquely weak. It attached no criminal penalty to interracial marriage, and according to a historian, it was “already largely eviscerated in practice.” Indeed, one justice concurring in Perez went so far as to invoke the “attitude of comparative indifference [to miscegenation] on the part of the [California] Legislature” and “the absence of any clearly expressed public sentiment or policy [about it]” along with “strong indications of legislative intentions which point the [other] way.”

The U.S. Supreme Court, then, waited two decades to confront the issue. It, too, pursued a path of political caution and respect for majority rule. It, too, did not defy democratic politics. It waited to follow it. Between 1948 and 1967–while Congress moved to prohibit racial discrimination–many state legislatures repealed antimiscegenation laws. By the time Loving was finally decided, interracial marriage was already permitted in two-thirds of the states.

Now, contrast Goodridge. No state permitted same-sex marriage–or ever had. There was no history of non-enforcement of the traditional limitation on marriage. Two courts, in Hawaii and Alaska, pushed at the door, tentatively, in the last decade. These initiatives were quickly repulsed by the voters of each state–locking in new barriers to same-sex marriage–and then resisted by further state and federal legislation. Was there reason to believe the people of Massachusetts were more prepared, in 2003, to embrace same-sex marriage than the people of Hawaii a few years before? I doubt it.

What’s more, the Massachusetts court lacked a vital resource of constitutional argument that had been available to the California court. In 1948, suspicion of racial discrimination was well-established in American constitutional law. The Perez opinion invoked it. There is, to this day, no well-established suspicion of discrimination by sexual orientation. Goodridge was left to put its emphasis on the importance of marriage–which played into the hands of its critics whose condemnation of the decision proceeded from just the same premise.

There was available, of course, an alternative. The Supreme Court of Vermont had taken an incremental step, requiring the institution of civil unions. That ignited a political struggle but seems to have stuck. You might think the Massachusetts court would have opted to follow Vermont. (Even the Netherlands, the first country to legalize same-sex marriage, had begun by instituting civil unions.) But no. What the Goodridge court lacked in political warrant for its decision, it made up for in self-righteous self-assertion. The risk that seemed to concern it most was the risk that some other court, later on down the road, would be “first.”

What do you say to those who argue that Goodridge could open the door to legalizing other unions, such as those between siblings or a triad?

Tribe: When confronted with such hypotheticals, we need to ask ourselves how plausible is it to imagine the dynamic generated by discrimination against same-sex couples–a dynamic constituted by violent intolerance toward those open about their intimate relations and by equally devastating self-erasure by those closeted about their sexual orientations–at work in these other, very different, contexts. Incest laws draw circles around individuals, defining the finite set of family members so closely tied by blood or adoption that sexual intimacy becomes too dangerous or volatile for society to sanction. These restrictions no doubt inflict a heavy burden on particular hapless individuals whose misfortune it is to lust after or to fall in love with a family member, but such tightly drawn circles bear no real resemblance to the broad lines cutting oppressively across society to rule half the adult population off limits as sexual or marital partners for a distinct and despised minority. So, too, the circles that our adultery and bigamy laws have drawn around married couples have established partitions that fall with an undeniably cruel weight upon individuals who fall in love or lust with someone else’s spouse. But these laws likewise cut no wide swath through the population to limit the options open to any particular oppressed minority.

Parker: Since the life of the law is (and should be) democratic politics–not logic–the legalization of other unions will occur only if and when there is widespread popular sentiment favoring such an expansion of marriage. I don’t foresee that soon, do you?

What’s your reaction to the many gay marriages performed in San Francisco and other parts of the country, without the law being changed to allow them?

Tribe: I’m surprised things have moved so quickly, with so little opportunity for people to grow accustomed to one state’s developments before officials in other states hop aboard the bandwagon. To the degree the speed and casualness with which some of the steps toward gay marriage have been taken might fan the flames of backlash against the entire notion of gay unions and may leave the misleading impression that Goodridge has unleashed a period of chaos that only a federal marriage amendment to the U.S. Constitution can stop, I would have preferred that the relatively low-level officials involved not take the law into their own hands but rely instead on the methods that are everywhere in place for launching orderly and speedy challenges to laws that limit marriage to opposite-sex couples.
That said, I do admire the daring and the spirit that these gay marriages represent. Unwilling any longer to remain even partly closeted, the couples involved in these unions are saying to the world that a legal system illegitimately denies their equal worth and dignity when it announces that, however deep and exclusive their mutual commitment may be, and however permanently they intend to remain together, they cannot have in law what my wife and I have had these past 40 years: a civil marriage and not merely some second-class facsimile or simulacrum of that status. These couples are saying that, if marriage as an institution is under siege, the reason is less likely to be same-sex marriage than casual adultery and easy divorce and the many pressures that make it tough for married couples to live by their wedding vows. If it is under siege, the reason is less likely to be gay marriage than the idiotic TV programs that treat marriage as a game-show prize, or than the antics of Britney Spears and others like her.

Parker: Civil disobedience can be good for democracy–so long as, in breaking a law, you are calling attention to what is plausibly an injustice; so long as your aim is to persuade others to change the law you break or one of equal or greater importance; so long as you show respect for those to whom your behavior is addressed; and so long as you accept punishment for what you do.

Disobedience by officials raises a special issue. You can argue that–because they are agents of law and because they have other effective ways of promoting its change–they are less justified in breaking it. If, however, the official (say, a mayor) was elected and can be removed from office at the next election, the voters can, I think, apply whatever additional discipline may be needed. The same holds, indirectly, for appointed officials who can be removed by elected officials.

The hard case involves an appointed official who is not term-limited and not responsible, directly or indirectly, to the people–a category that includes judges in Massachusetts. Whether judicial “interpretation” may cross a line and become a sort of civil disobedience is a good question. Whatever the answer, the question suggests the value of judicial term limits and elections as well as more streamlined processes for correction of far-out “interpretations” by legislation and constitutional amendment.

What about consequences, such as the possibility of constitutional amendments defining marriage as a union between one man and one woman?

Tribe: Some of the proponents of such amendments are undoubtedly sincere, but others–notably including President Bush–seem to me to be playing with constitutional fire for largely political reasons rather than because they truly see a national problem that only an amendment could fix, and I suspect that the fire may end up consuming those who ignite it well before it burns up so basic a part of our constitutional heritage as the principle of equality under the law. A federal marriage amendment, whose most enthusiastic advocates certainly wouldn’t be satisfied until they had limited the ability of the states to recognize even civil unions with legal incidents similar to those of marriage, would represent a massive retreat from the direction in which our Constitution has until now evolved: toward ever broader inclusion within the circle of equal citizens, embracing first people of color (1870), then women (1920), then those unable to pay a poll tax (1964) and, most recently, those old enough to be drafted to fight and die for their country because they have reached age 18 (1971). To amend the nation’s basic charter in order to deny the status of marriage to same-sex couples, even in a state whose highest court finds the right to such equal status in its own constitution, would be to turn our backs on the core principle of equal dignity. And it would do so by including in the Constitution not the kind of provision for which it has traditionally been reserved–a provision about the structure of our governing institutions and about the limits of government power vis-ˆ-vis the individual–but the kind we have placed in the Constitution only twice, each time with tragic or comic results: tragic in the instance of slavery, which was stitched, although never quite named, into the fabric of the Constitution of 1787 and dissolved by a bloody civil war and by the three constitutional amendments surrounding that war; and comic in the instance of prohibition, which was written into the Constitution through the foolish 18th Amendment, which led to the speakeasy and to a steep rise in organized crime and in cynicism about the law, and which was repealed in the 21st Amendment.

Particularly ironic as a proposal coming from many who otherwise champion states’ rights, a federal marriage amendment would go beyond preventing states from exporting gay marriages to other states–hardly a danger in need of prevention inasmuch as marriages, unlike judgments and decrees, have in any event never been held entitled to “full faith and credit” in states whose public policies they offend. Much more difficult to reconcile with axioms of federalism, such an amendment would prevent states from enshrining in their own constitutions, or reading in the existing language of those constitutions, the principle of equality for same-sex couples that the SJC found in the Constitution of Massachusetts. Such an amendment would repudiate the central principle of the federal structure, enshrined in both the Ninth Amendment and the Tenth, that each state is free, so long as it does not violate any federal right or privilege in doing so, to endow its own citizens with rights broader and deeper against that state than they enjoy as citizens of the United States against the national government.

I have enough faith in Congress to believe that it will not send such an amendment to the states for ratification by the requisite two-thirds vote of each house, and enough faith in the American people to believe that, if I am wrong about Congress, then sanity will return before 38 state legislatures have given this blot on our Constitution their blessing.

Parker: In response to Goodridge, constitutional amendments may be enacted to lock a door that should not be–and need not have been–locked. Given Goodridge, however, the amendment process is the appropriate recourse of democratic politics.

It is a mistake to focus, now, on amendment of the U.S. Constitution. The real purpose would be to pre-empt a U.S. Supreme Court decision like Goodridge. But I can’t believe that even the current justices will soon impose same-sex marriage on a nation plainly not now ready for it.

For the moment, it is in state politics that this issue should (and will) play out. In Massachusetts, the process will go forward despite the provisional fait accompli presented to the people by the court. In other states, where a decision like Goodridge may be in the cards, the matter should be put to the voters sooner rather than later. No one can be sure of the outcome. But the issue, having been raised, even if raised too soon, must now be resolved where every important issue must ultimately be resolved–at the ballot box.