Same Sex Marriage, Social Movements, and the Supreme Court

November 13th, 2012

If the Supreme Court looked to elections to vindicate their results, this past election offers at least two primary examples.

As Adam Liptak notes in this great piece, the election was in a number of states a referendum on same-sex marriage, and gay rights.

The justices tend to say they are not influenced by public opinion. But they do sometimes take account of state-by-state trends, and the latest developments will not escape their notice.

Indeed, when the Court addresses the pending DOMA cert petitions in a few weeks, this will likely inform, at least in some degree, the public interests backing these issues.

The social movements lead by Dale Carpenter and others in the states to legalize same-sex marriage have affected our cultural climate towards these issues.

Elie Mystal asks whether theĀ (lower) courts have led the way for gay marriage. Indeed, a number of the lower court opinions striking down DOMA, Prop 8, and other laws–bucking the trend of what seems to be Supreme Court precedents–in addition to the President’s decision not to defend the Defense of Marriage Act certainly helped to impact views and sentiments. See here, here, and here for my thoughts on the DOMA lack-of-litigation.

David Boies, who, along with Ted Olson, brought the challenge to Prop 8 commented on the recent victories on election day and the prospects of his case:


The elections in Maryland, Maine and Washington were the first time that gay marriage was allowed as a result of a popular vote rather than a legislative or court decision. Including those states, same-sex marriage is now legal in nine states and the District of Columbia.

“It’s impossible to tell” how that election outcome might influence the court, Boies said, because it could affect the justices’ thinking in any of several ways.

On one hand, the court could see an increase in public opinion supporting same-sex marriage as a reason to act, he said.

On the other hand, the court could conclude, “Let’s give it more time,” and wait to see whether a trend continues in more states, he said.

If the Supreme Court declines to take up the Proposition 8 appeal, the 9th Circuit decision would go into effect, but would apply only to California.

In any event, David Boies is already predicting victory at the Court:

Boies said it is difficult to anticipate what the court will do, but said, “If I have to make a prediction, I would predict the court will hear our case.”

And, he said, “If they take it, I think we will win.”

“I believe we will get more than five votes,” said Boies, speaking of a possible future decision by the nine-member court on the state’s same-sex marriage ban.

“This is a civil rights case of the same importance as Brown v. Board of Education and Loving v. Virginia,” Boies said. The two cases were the court’s unanimous decisions outlawing school segregation in 1954 and striking down a ban on interracial marriage in 1967.

“I think the justices have a history of coming together and rising above their personal views to enforce the Constitution’s guarantees of equality,” he said.

Second, in some respects, the election substantiates the Chief Justice’s decision to uphold the Affordable Care Act–though in a backward-looking way. President Obama won reelection in what is largely viewed as a referendum on his policies, including the health care law. As John Boehner said, the ACA is here to stay. Now, if the Chief had gotten out in front of the populace, and struck down the law, would that have affected the election?