The Supreme Court and the Future of Proposition 8: Lessons From <i>Roe v. Wade</i>

If the Supreme Court finds a constitutional right to same-sex marriage generally, it will do what it hastily did in: It will force the recognition of a controversial right on a large number of states, not just on extreme outliers, exposing itself and the LGBT rights movement to a public backlash.
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When the Supreme Court decided Roe v. Wade in 1973, finding a constitutional right to abortion, abortion was still illegal in 30 states, but states had been on a clear trend toward liberalizing abortion laws. In 1967, Colorado had become the first state to enact exceptions to what had been a complete ban on abortion, for cases of rape, incest or danger to the life of the mother. In 1970, Hawaii had become the first state to repeal most restrictions against abortion. Liberal states like California and Washington had spearheaded reforms, as had some conservative ones, including North Carolina and Mississippi.

Then came Roe v. Wade, which immediately required the 30 states that had yet to enact any self-initiated reforms to conform to the growing consensus of easing abortion restrictions. In the wake of the decision, backlash ensued, and the steady state-by-state successes were preempted.

Today, the Supreme Court faces a similar dilemma with Proposition 8. The marriage equality movement mirrors the pre-Roe political landscape. With legislative successes in a handful of states, additional wins at the ballot box in Maine, Maryland and Washington, and a clear trend in public opinion in favor of full marriage rights for same-sex couples, progress is steadily being made in the states. If the Supreme Court finds a constitutional right to same-sex marriage generally, it will do what it hastily did in Roe but did not do in the interracial marriage case Loving v. Virginia, which was decided when only 16 states still banned interracial marriages: It will force the recognition of a controversial right on a large number of states, not just on extreme outliers.

The court should take a narrow approach to the constitutional merits of Proposition 8. The justices would be wise to limit their decision to California alone, so that their decision, like that of the lower appeals court, will not have a direct impact on any additional states. This way, the grassroots efforts of LGBT rights organizations can continue to steadily build on recent successes in states, giving the court a stronger mandate for finding a fundamental right to same-sex marriage in a commanding, landmark opinion later down the line.

However, there is a way that the court could push the accelerator on the marriage question without getting too far ahead of public opinion: Because California public policy already provides families headed by same-sex couples the same legal protections as those headed by opposite-sex couples, denying them only the term "marriage" (thanks to Proposition 8), it's conceivable that the court could rule that the denial of the term "marriage" is unconstitutional because it can only be explained by an irrational disdain for non-heterosexuals.

Creating legal institutions that are separate but equal run contrary to our constitutional values and societal norms. In this sense, civil union laws are no different from the anti-gay amendment to Colorado's constitution that the U.S. Supreme Court struck down in Romer v. Evans. Justice Kennedy described that amendment as being "not within our constitutional tradition."

That type of opinion could result in marriage rights for same-sex couples in states that only recognize civil unions or other institutions that act as functional equivalents of marriage. As a result, in addition to California, the court would bring New Jersey, Rhode Island, Illinois, Hawaii, Delaware, Oregon and Nevada into the marriage fold, unless they act legislatively first. In essence, the court could push the needle in states that are already predisposed to favoring marriage equality and LGBT rights generally without exposing itself or the LGBT rights movement to the perils of a public backlash, as has been the post-Roe experience.

There are many confounding variables that make predicting what the court will do with the Prop 8 case impossible. However, while the justices should be mindful of history and the delicate role that the court plays in advancing social change, they should not shy away from shaping the law toward the ultimate end: finding a fundamental constitutional right to same-sex marriage.

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