Inevitability hit the U.K. first.

Photographer: Leon Neal/AFP/Getty Images

Justices Just Aren't Ready for Gay Marriage

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Back in the dark ages in America, coffee didn’t come from sleek, fast Italian machines: it dripped, one painful drop at a time, through a filter into a waiting pot. This, my best-beloved, was called “percolation” -- and it provides the central metaphor for how the U.S. Supreme Court considers whether to take controversial cases. Today's decision by the justices to deny seven petitions asking them to decide whether there is a constitutional right to same-sex marriage was a classic example. Impervious to the pressures of the news media or the gay-rights movement, the justices decided to let the issue percolate a while longer.

The surprise of the Supreme Court commentariat is itself surprising. Over the last few weeks, one expert after another has been declaring that this was the term for a historic gay-rights decision. (Of course, that possibility isn't absolutely eliminated by today's decision -- other cases are in the pipeline, and it’s just conceivable if highly unlikely that the court could grant another case in time for the issue to be argued this year.)

Their confidence always struck me as misplaced. The court made it very clear in June 2013 that was in no rush to announce a constitutional right to gay marriage. Justice Anthony Kennedy could certainly have pushed his Defense of Marriage Act Decision, Windsor v. United States, in the direction of a general right. That he did not was a sign that he preferred the political process to take its course.

So why did the legal pundits overwhelmingly think the court would take a case now? Mostly because lots of lower courts have indeed been deciding gay-marriage cases, overwhelmingly holding that the logic of the Windsor decision points in favor of a general constitutional right. Cumulatively, they create a sense of inevitability -- especially among those of us who write about law for the general public and spend an inordinate amount of time focusing on each and every one of these cases.

Inevitability, it might be thought, is what the Supreme Court waits for before making any landmark decision. But in this case, there is another major consideration: The justices are also worried about fueling a backlash that would render their decision illegitimate, even if it seemed inevitable. The great worry of the Supreme Court – or at least of Justice Kennedy -- is that a premature gay-marriage decision would produce the kind of substantial public disagreement that followed Brown v. Board of Education and Roe v. Wade.

The aftermath of those two very different cases demonstrated two very different kinds of opposition to a landmark decision. Brown produced tremendous resistance in the South that ultimately had to be met with federal force, in the form of the 101st Airborne being dispatched to Little Rock, Arkansas. While Roe was not met with immediate large-scale protests, it did provide the impetus for a slow but steadily growing organized opposition that galvanized Catholics and evangelicals. That alliance helped elect Ronald Reagan, and changed the face of American politics for several decades.

In both cases, the result could arguably have been seen as inevitable. The Nazis’ Nuremberg laws -- themselves based in part on southern “black codes” – made de jure segregation into an anachronism. The cold war, in which the Soviets could condemn the U.S. as neo-fascist because of its domestic apartheid, assured that something would have to be done to make segregation go away, at least formally.

As for abortion, nearly every Western European democracy legalized the practice in some form in the 1960s and 1970s -- especially those in which the Catholic Church wasn’t too powerful. Indeed, one reason Roe didn't produce enormous backlash right away is that the decision had the feel of inevitability in the light of social trends.

The gay marriage question is somewhere in between the examples of Brown and Roe. As in Brown, there is already a substantial public movement opposed to gay marriage. (In a striking twist, that movement arose largely out of the conservative Christian social movement that Roe did so much to spawn.) Unlike Brown, however, the movement protesting a gay-marriage decision is unlikely to be so aggressive as to require suppression by law enforcement.

So what does the Supreme Court fear, exactly, that might be solved by percolation? The answer is that religious groups opposing gay marriage have been doing an excellent job of depicting themselves as victims of oppression whose religious liberties are at stake. Even highly intelligent, reasonable, well-informed conservative opponents of gay marriage have told me that they fear that religious institutions could be obligated to recognize gay marriages and even perform them.

As a matter of constitutional law, this concern is misplaced: the right to free exercise should guarantee that no priest, minister, rabbi or imam is obligated to perform any marriage that violates his or her religious scruples. But when it comes to the employees of religious organizations, the question is admittedly much more complicated. How far does the Constitution protect religious organizations in discriminating against married gay couples relative to straight couples? The question is one of degrees. The Hobby Lobby decision suggests that the trend is for the government to protect religious liberty to a greater and greater extent; but there is already Hobby Lobby backlash from the liberal side, and the fight is not yet over.

It follows, then, that the justices may have been onto something when they decided to let gay marriage percolate a bit longer: With each passing day, some degree of national consensus on how best to recognize the rights of gay people has a better chance of emerging. The arc of the moral universe is still bending toward justice -- but, as Martin Luther King Jr. reminded us, it is long.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Tobin Harshaw at tharshaw@bloomberg.net