Not to pick on the Washington Post‘s Jonathan Capehart, but his online piece earlier this week arguing that “the prospect of victory [in Perry v. Schwarzenegger] has me and more than a few others concerned about what may follow” makes a number of points that are, I think, a bit silly. I want to tackle just a couple of them.
Capehart makes the case that public sentiment—as evident in a legal landscape where most states prohibit same-sex marriage—does not support marriage equality to the extent necessary for the Supreme Court to feel comfortable ruling that barring gay people from marrying is unconstitutional. In doing so, he cites the example of Lawrence v. Texas in 2003, when the justices overturned remaining state criminal prohibitions on sodomy, reversing their 1986 decision in Bowers v. Hardwick. Specifically, he points to Justice Kennedy’s observation that “In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct.” Kennedy does make this point, in passing. But he does so after a much longer discussion that draws heavily on the work of historians of sexuality in order to make the case that the Bowers court was basically approaching the question the wrong way, because they proceeded from “historical premises [that] are not without doubt and, at the very least, are overstated.” In fact, historians demonstrated, although laws prohibiting sodomy had long existed, they targeted a range of acts between both same-sex and different-sex partners, and they were unevenly enforced; “laws targeting same-sex couples did not develop until the last third of the 20th century.” Indeed, Kennedy writes later in his opinion, “Bowers was not correct when it was decided, and it is not correct today” (my emphasis). Rather than an argument for waiting for public opinion to evolve, Lawrence seems more to suggest the value to gay activists of showing judges and justices strong historical and social scientific evidence that supports our arguments—which few doubt the Perry plaintiffs did. (For a taste, check out reenactments of the testimony by historians Nancy Cott and George Chauncey here, on days 1-3 of the trial.)
Later, Capehart writes:
Here’s something else to consider. The Massachusetts Supreme Judicial Court ruling that ushered in marriage equality there in 2004 also kicked off a push to enshrine discrimination in the Constitution through an amendment banning same-sex marriage. It went nowhere then. I’m not so sure today. Two-thirds of the states — 38 — are needed to amend the U.S. Constitution. As I just mentioned 30 states have already done it on their own. Or look at it this way, 45 of the 50 states currently do not permit same-sex marriage.
Three points here. First, the hurdle is actually three-fourths of the states, although this does indeed amount to 38. Second, even granting that all 30 states with some sort of constitutional marriage prohibition would definitely ratify a federal amendment banning same-sex marriage, I don’t think one can assume that state legislatures that have successfully kept state-level amendments off the ballot in places like Pennsylvania and North Carolina would rush to put a federal amendment before voters. Third, and most importantly, Capehart’s worrying here entirely ignores the role of the Congress. Between 2004 and 2006, with a supportive White House, the Republican-controlled Senate twice failed to invoke cloture on the Federal Marriage Amendment, with 50 nay votes on one occasion and 48 on the other. The amendment also failed twice in the Republican-controlled House, with just over half the members voting in favor each time—about 50 votes short of the two-thirds required, in other words. Even assuming that Republicans won control of both houses of Congress this fall with modest majorities, would a district court ruling in Perry really be enough to push more than a dozen and a half Democratic senators toward suddenly supporting a federal constitutional ban on same-sex marriage? I’m skeptical.
Most broadly, I just don’t really understand the point of pieces like Capehart’s. Debate the merits of bringing a suit like Perry, sure. But once a civil rights lawsuit is under way, what’s the value of extensive hand-wringing about success? Unfavorable decisions from Judge Vaughn Walker and especially from the Supreme Court on appeal would definitely be setbacks to the cause of marriage equality. Favorable ones might produce backlash. The expansion of civil rights in the face of strong opposition almost always does. But we have to confront that opposition at one point or another. Rather than casting the possibility of victory in vaguely apocalyptic terms—”All that’s needed is a spark. Right now, Judge Walker is the man holding the matches,” Capehart concludes—why not gird oneself and others for the fight?