After much anticipation, the United States Supreme Court heard oral arguments on Tuesday in the challenges to state bans on same-sex marriage. The Court was deeply divided, “not only what is the right answer but also over how to reach it,” The New York Times reported.
The court’s pivotal justice, Anthony Kennedy, himself seemed conflicted, first observing that the definition of marriage as between a man and a woman “has been with us for millennia,” but later raising concerns about excluding gay families from what he called a noble and sacred institution. “Almost no one foresaw that the justice from Sacramento would turn out to be the Supreme Court’s most important voice on gay rights, writing every major decision over the last two decades,” writes the Los Angeles Times, which looks at Justice Kennedy’s past decisions on cases involving gay rights.
Chief Justice John Roberts Jr. is also an open question given his reputation as a strategic and sometimes surprising thinker. Longtime court observers note that on landmark decisions, chief justices don’t like to be on the losing side.
There are those, though, who believe the high court shouldn’t even be hearing the case, that it should be left to “the will of the people” and the state representatives thereby. Justice Stephen Breyer, considered one of the court’s liberal justices, touched on this point.
“Suddenly you want nine people outside the ballot box to require states that don’t want to do it to change … what marriage is,” he said. “Why cannot those states at least wait and see whether” doing so is harmful to marriage?
The question highlights the tendency of the Roberts court to move slowly, minimally, and avoid broad rulings that have colored past court precedent in affecting sweeping social change. If it is better to let states decide, and by extension, the “will of the people” who elect legislators in those states, at what point does the court weigh in? “Who decides?” writes political speechwriter Margaret Bengs in The Sacramento Bee. “The people through the legitimate democratic processes enshrined in the Constitution – or a handful of unelected federal judges?”
One might look to our own history for answers. The founding fathers – both Federalist and anti-Federalist – feared mob rule, knowing the majority could abuse its powers to oppress a minority just as easily as a king. To Thomas Jefferson, the will of the majority was paramount, but he warned in his inaugural address of 1801 that “the will to be rightful must be reasonable” for “the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”
James Madison, alluding to slavery, wrote, “It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.” One can easily note that in our history, a majority once supported slavery, didn’t think women should vote and thought separate was equal.
As one reader noted in a comment to Bengs’ guest column, “Would she then be on board if the people and the legislature of a state decide to ban all guns or would she scream that it’s unconstitutional? What if the legislature and the people voted to ban interracial marriages? Oh wait, that’s already been declared unconstitutional by the courts.”
The courts did so, incidentally, in the face of strong popular opinion in favor of such bans. In 1948, when California’s ban on interracial marriage was challenged, polls at the time found 90 percent of those surveyed opposed mixed race marriages. California’s Supreme Court ruled the ban unconstitutional. In 1967, when the United States Supreme Court came to the same conclusion in Loving v. Virginia, 70 percent opposed interracial marriage.
Those cases illustrate how the American system of a tripartite government works. Each branch checks and balances the other. The people’s will, and by extension, its elected representatives in the legislature, are but one branch in our system of governance, able to pass laws, either by ballot box initiative or legislative writ. The Judiciary’s role is to interpret those law to insure constitutional muster. In both Perez and Loving, despite overwhelming popular opinion, the courts ruled that the respective bans on marriage were unconstitutional, as in, the will of the people, and the legislatures that passed those laws, was wrong.
Responding to Justice Breyer’s question, Mary Bonauto, pointed out that the U.S. Constitution has repeatedly recognized and corrected the people’s will, at which point Justice Ruth Bader Ginsburg noted that until 1982, when the Supreme Court struck down a law governing a wife’s position in marriage, some states still recognized men as the masters of their wives.
It raises an important question directly tied to the the fear of mob rule that so concerned the Founding Fathers: Should the majority rule if it is uninformed about the law or misinformed about current events? A check on any number of recent Gallup or Harris polls tracking the public’s general knowledge finds:
- On the eve of the Iraq War, 69 percent of those surveyed thought Saddam Hussein was personally involved in 9/11. Four years later, 41 percent still thought he had weapons of mass destruction, despite George Bush conceding that he didn’t.
- One quarter of us can’t name the country America fought in the Revolutionary War.
- Nearly half of Americans don’t know that states have two senators and more than half can’t name their congressman.
- In one recent Pew Research poll, 18 percent of those surveyed think the sun revolves around the Earth, while only half know that Judaism is an older religion than Christianity, even though each faith is clearly defined by books called “Old Testament” and “New Testament.”
On the subject of gay marriage, the court of public opinion – the people’s will – has changed dramatically. In 1996, typically only one quarter of the public favored legalization of gay marriage; this year, that approval number is well over 50 percent.
In California, long a center of debate over gay marriage, the will of the people moved from 61 percent opposed to gay marriage – with the passage of Proposition 22 in 2000 – to, in 2008, 52 percent who passed Proposition 8, the ballot measure whose passage legalized a gay marriage ban that the high court struck down in 2014 on a technicality. Today, 61 percent support gay marriage, including 55 percent among older, more conservative voters.
“People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts,” noted Justice Roberts, but lawyer Bonauto argued that the court cannot wait for societal acceptance if society is not in consonance with the law.
Fifty years after the United States was established, Alexis de Tocqueville, visiting pre-Civil War America, asked why no free blacks had come to vote in a local Pennsylvania election. He was told that free blacks had the legal right to vote, but feared the consequences if they did.
Thus, he wrote, “The majority not only makes the laws, but can break them as well.”
In a nation of laws, if the majority breaks them, if the majority is wrong, who shall correct them?