Sea change

Last week was one for the history books, or at least constitutional law case books, at the Supreme Court. The Court heard oral argument on two cases involving gay marriage. The first, Hollingsworth v. Perry, challenges whether the Equal Protection Clause of the 14th Amendment prohibits California from defining marriage solely as the union between a man and a woman. The second, United States v. Windsor, asks whether section three of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons legally married under the laws of their state to a member of the same sex.

The fact that these two cases made it all the way to the Supreme Court exemplifies the sea change in public opinion over the past several years. In fact, the Pew Research Center has found that this sea change is one of the largest changes in public opinion on policy issues over the past decade. Just 10 years ago, only 47 percent of Americans believed homosexuality should be accepted by society. Today, 57 percent of Americans believe this. Among those born between 1980 and 1995, 74 percent accept same-sex marriage; among 33 to 48 year olds, that figure is 62 percent.

Granted, simply because public opinion supports the expansion of the institution of marriage to include same-sex couples does not mean that the Supreme Court should be swept up in the movement. If the Supreme Court were at the mercy of public opinion, Brown v. Board of Education would have reaffirmed Plessy v. Ferguson, upholding the separate but equal doctrine. Rather, the Court has an obligation to uphold both the Constitution and the unenumerated rights of individuals. This ends up becoming a battle of states’ rights against individual rights to equal protection under the laws.

In the case of Hollingsworth v. Perry, the plaintiffs argue that California’s infamous Prop 8, by denying same-sex couples the right to marry, violates due process and equal protection. With respect to the due process argument, the right to marry constitutes an unenumerated, fundamental right. In the 1978 case of Zablocki v. Redhail, the Court recognized marriage as “the most important relation in life,” and that “the right to marry is of fundamental importance for all individuals.” The defendants, on the other hand, argue that the exclusion of same-sex couples from marriage is warranted by a state interest in preserving the age-old institution of marriage.

But if the Court could never alter archaic institutions, then schools would still be segregated today and women would not be allowed to serve on juries. If it was impossible to alter the basic principles of marriage, then women would still move from their father’s control to their husband’s, never becoming independent enough to legally own property or bring suit.

Furthermore, a state-sanctioned version of marriage does not go as far back as beginning of organized society. Rather, marriage was not required to be recognized by European states until the 16th century. Marriage licenses originally emerged to prevent marriages between couples whose parents did not provide consent, such as in instances of interracial marriage. By the mid-20th century, interracial marriage was no longer prohibited, and marriage licenses were used primarily to distribute resources to dependents. However, even this motivation has dissipated today with the increasing number of unmarried and single individuals with children.

Same-sex couples such as the plaintiffs in this case are not clamoring for the right to marry in the Catholic Church. The Church is free to continue to define marriage as strictly between a man and a woman. But the United States ostensibly subscribes to the principle of separation of church and state. As such, the Church’s (or any other religious institution’s) millennia-old conception of marriage should not prevent the Supreme Court from allowing same-sex couples to exercise their fundamental right to marry.

As for the equal protection argument, the plaintiffs argue that denying same-sex couples the right to marry because of their sexual orientation and the sex of their chosen spouse makes same-sex couples unequal to everyone else. Proposition 8 has the opposite effect of the Colorado housing law at issue in the 1996 case of Romer v. Evans. The Court there held that a state law that neither burdens a fundamental right nor targets a suspect class of persons will be upheld under the Equal Protection Clause if it bears a rational relation to a legitimate state purpose. The defendants in Hollingsworth argue that the legitimate state purpose is the promotion of an “optimal social structure for educating, socializing and preparing its future citizens to become productive participants in civil society.” But if the purpose of marriage is solely to promote procreation, then infertile couples would not be able to marry, and California’s own policy of allowing same-sex couples to adopt would seem counterintuitive.