Why Strong Pro-Gay Marriage Supporters Should Still Be Worried; Or, It’s A Long Way To Tipperary

     In my initial post on same-sex marriage (“One Reason Why Strong Pro-Gay Marriage Supporters Should Be Worried” (12-10-2012) I claimed that the Supreme Court in Lawrence v. Texas, 539 US. 558 (2003) heavily relied upon (perhaps I should have just said “gave much weight to”) the decisions of the European Court on Human Rights (ECHR) with respect to consensual homosexual conduct. The point that I wanted to make was that, given that this claim was true, the Court should also heavily rely upon (i.e., give much weight to) the decisions of the ECHR denying that the right to same-sex marriage is fundamental—especially because forty-one States (plus the District of Columbia, and the Commonsealths of Puerto Rico and the Northern Mariana Islands), and the United States itself, do not legally authorize same-sex marriage.
     I am grateful to rg57 for writing: “I think you’re overstating the weight given to ECHR. The decision in Lawrence  referred to ECHR only ‘to the extent Bowers [the case being overridden] relied on values shared with a wider civilization’ and for ‘The sweeping references by Chief Justice Burger to the history of Western civilization.’’’.:Alas, what I should have done my first post, but egregiously failed to do, was to have also included the following passage from the Court’’s opinion in Lawrence, 539 U.S. at 576-77 (bracketed matter added): 

The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. [Matter pertaining to developments in American jurisprudence omitted.]To the extent, Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The [ECHR] has followed not Bowers but its own decision in Dudgeon v. United Kingdom. [Further citations to ECHR decisions omitted.] Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct.  [Citation omitted.] The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

     So, besides undercutting Chief Justice Burger’s reliance on “values we share with a wider civilization,” the Court in Lawrence deemed the constitutional law of the Council of Europe concerning private homosexual conduct as providing a substantial factor, albeit not dispositive, supporting its holding respecting private homosexual conduct. I

     Well, let us just suppose that I had indeed overstated the weight given in Lawrence to the decisions of the ECHR. Nevertheless the fact is that Justices Kennedy, Ginsburg, Breyer (who were in the Lawrence majority). and Sotomayor (all sitting justices) maintain that it is quite legitimate for the Court to consider  foreign law in determining the meaning of constitutional provisions pertaining to individual rights.

     For example, the Supreme Court in Roper v. Simmons, 543 U.S. 551 (2005) (http://supreme.justia.com/cases/federal/us/543/03-633/) ruled that the Eighth and Fourteenth Amendments prohibit the execution of a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime. The Court, in an opinion by Justice Kennedy (joined by Stephens, Breyer, Souter, and Ginsburg) declared:   

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10–11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. **** It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

     And in the more recent case, Graham v. Florida¸ 560 U.S. ___ (2010) (http://supreme.justia.com/cases/federal/us/560/08-7412), the Court ruled that juvenile offenders cannot be sentenced to life imprisonment with parole for non-homicide offenses. The Court declared (in an opinion by Justice Kennedy, joined by Justices Stephens, Breyer, Ginsburg, and Sotomayor):     

     The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.

     Yes another factor should be considered. There are thirty States with constitutional bans on same-sex marriage. A constitutional ban on same-sex marriage signifies a judgment that any right to same-sex marriage is not fundamental. Eleven other States have statutory bans; as do the Commonwealths of Puerto Rico and the Northern Mariana Islands. Of the ten jurisdictions (nine States and the District of Columbia) that legally authorize same-sex marriage, three (i.e., Massachusetts, Iowa, Connecticut) do so either by virtue of novel judicial interpretations of state constitutional provisions. The other jurisdictions (six States and the D.C.) do so as a matter of statutory law. All this is of great significance because it is one thing for a State to legally authorize same-sex marriage by virtue of a constitutional provision, and quite another to do so only by virtue of a statutory provision. The significance of the difference cannot be plausibly minimized. To authorize same-sex marriage only by statute presupposes the power of the jurisdiction to repeal or modify the authorizing statute. The status of the right in question, therefore, cannot be regarded as being one that is fundamental in the jurisprudence of that jurisdiction. Therefore, either a statutory authorization of or a ban on same-sex marriage perhaps may well signify a judgment that the right to same-sex marriage is not fundamental. So it follows that a Court holding denying that the right to same-sex marriage is a federal constitutional right would not lack “respected reasoning to support it”—domestic or foreign.

     Somewhat similar considerations apply to public opinion polls. One cannot at all infer that the majority of surveyed Americans would now say that the Court should hold that there is a federal constitutional right to same-sex marriage just because a majority of Americans for the time being say that they support same-sex marriage without further qualification. Clearly, it is only if someone says that the right to same-sex marriage should be a federal constitutional right that we may conclude that that person would say that the right is fundamental for federal constitutional purposes. It would be interesting to see the results of a fairly conducted public opinion poll in which the public was asked whether they would approve of the Supreme Court ruling that the right to same-sex marriage is a federal constitutional right; i.e., one that is binding upon not only the United States, and its possessions, territories, and the District of Columbia, and all the fifty states—the public being informed that forty-one states, plus the two commonwealths,  constitutionally or statutorily ban same-sex marriage. As far as I know, no such public opinion poll has been conducted. So public opinion polls thus far conducted on same-sex marriages should at most minimal significance for the Court.

     Liberty-Rights specified in the Bill of Rights (Amendments I-VIII) are incorporated by the Fourteenth Amendment (1868). These liberty-rights are: religious freedom, freedoms of speech, press, and assembly, and the right to keep and bear arms. There are other liberty-rights deemed to be fundamental by virtue of the Due Process Clauses of the Fifth and Fourteenth Amendments. These liberty-rights include (but are not limited to) certain rights pertaining to marriage, contraception, early-term abortion, consensual, noncommercial homosexual conduct by adults in the privacy of the home or its functional equivalent, parental control of education of children). The latter class of liberty-rights are (or should be) chiefly grounded not upon public policy considerations but rather upon the basic exigencies of human dignity and which are, as I would put it, the essential badges and incidents of free persons within the United States or subject to their jurisdiction..As the Court explained in Washington v. Glucksberg, 521 U.S. 702, 722 (1997) (op. by C.J Rhenquist, with O’Connor, Scalia, Kennedy, Thomas concurring):

[T]the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” [citations omitted].(“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,” [citation omitted].[Note*]

Note *: I do not read Justice Kennedy’s opinion for the Court in Lawrence as being inconsistent with the just-quoted passage. In Lawrenece Kennedy remarked: 539 U.S. at 578-79:”Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”


     So it is of great importance that any liberty-right must be fundamental in the requisite sense. However, what is the requisite sense in any particular case can be admittedly a matter of acrimonious debate among the justices, other jurists, and legal commentators. I need not further address this matter here. It suffices for my purposes to point out that four sitting justices (i.e., Roberts, Scalia, Thomas, Alioto) are certainly going to rule that the right to same-sex marriage is not a federal constitutional right, that homosexuality is not the basis of a so-called suspect class for equal protection purposes, and that DOMA is valid. With respect to the other sitting justices (Kennedy, Breyer, Ginsburg, Sotomayor, Kagan), I cannot but think that one or more of them will in all probability conclude (or should conclude) that the right to same-sex marriage is not fundamental in the requisite sense (whatever that might be) if only for the reasons I have set forth in this and my initial post. It seems incredible that a majority of the Court would rule that the right to same-sex marriage is fundamental given the rulings by the ECHR on this matter and the fact that the overwhelming majority of American jurisdictions, including those that only statutorily authorize same-sex marriages, implicitly reject the thesis hat the right to same-sex marriage as fundamental. Given the foregoing, strong pro-gay marriage supporters should brace themselves for an unwelcome outcome. Yet, I admit that all things are possible since some justices forget from time to time that it is the Constitution that he or she is expounding.
[originally posted December 18, 2012; updated February 4, 2013]