Ginsburg's (Pyrrhic?) Triumph

AP Photo/Pablo Martinez Monsivais

The two major same-sex marriage cases decided by the Supreme Court in June were puzzling for at least two reasons. Windsor, which struck down a major provision of the Defense of Marriage Act, featured a notably opaque opinion by Justice Anthony Kennedy. Hollingsworth v. Perry, on the other hand, which resulted in legal same-sex marriage in California—albeit through a technicality—had a vote lineup that bore little relationship to how justices typically vote in standing cases, suggesting strategic voting on both sides. Part of the reason for these anomalies might be the Justice Kennedy's uneasiness. But it's worth noting that the outcome produced by these two cases is consistent with the long-held beliefs of one justice who was (unlike Kennedy) in the majority in both cases: Ruth Bader Ginsburg.

Court observers have interpreted the unusual vote lineup in Perry (Republican appointees Chief Justice Roberts and Justice Scalia, joined by their more liberal colleagues Justices Ginsburg, Breyer, and Kagan, made up the majority) in numerous ways. Jeffrey Rosen of the New Republic speculates that "either that the liberal justices weren’t confident that they could get Kennedy’s vote or that he made clear his willingness to uphold Prop 8." My own guess is that it's much more likely to be the former than the latter—that is, it's hard to explain the vote lineup unless justices with strong commitments on both sides of the issue were uncertain of Kennedy's vote. If it was clear that Kennedy would uphold Prop. 8, it's hard to imagine that Roberts and Scalia would not have joined him; I simply don't believe that the law of standing is more important for either justice than the question of same-sex marriage's constitutionality.

Whatever the reasons for the vote lineup, it's worth noting that the ultimate outcome of the cases is strikingly similar to the approach Justice Ginsburg has argued the Court should have adopted in Roe v. Wade.

In Roe, Ginsburg has argued, the Court should have struck down the extreme Texas law in question (which banned abortion in all circumstances except the life of the mother) but remained silent on other states. According to Ginsburg, this would have reduced the backlash against Roe and given the Court leeway to further develop equal-protection law forbidding gender discrimination.


Ultimately, the Court's decisions in the DOMA and Prop. 8 cases invalidated two specific laws—ones that no longer had very strong public support—without affecting any other state in which same-sex marriage is still illegal. If we assume that Ginsburg (as well as Breyer and Kagan) preferred to strike down Prop. 8 and Section 3 of DOMA without going further, this explains why the Court denied standing in Prop. 8 and articulated a rationale for striking down Section 3 that was notably less clear than either of the circuit court opinions reaching the same conclusion.

Kennedy's incoherence was, in this sense, a feature rather than a bug: it allowed the Court to not uphold DOMA without articulating a standard clear enough to rule bans on same-sex marriage either constitutional or unconstitutional in the states where they still exist.

The Court, then, appears to be testing the theory Ginsburg wished the Court had tried with abortion. Should proponents of same-sex marriage see this as a secret victory?

I am skeptical.

First, I have never agreed with Ginsburg's assessment of the effects of Roe, for multiple reasons. My research, as well as the research done by Linda Greenhouse and Reva Siegel, has shown that the right's backlash against legal abortion was well underway before Roe was decided. In addition, the assumption that Roe would have been more accepted had it been decided on equal-protection grounds is extremely implausible. The public evaluates Supreme Court decisions on results, not reasoning. Roe has generally been as—or more—popular than legal pre-viability abortion in general. Finally, a "minimalist" opinion on abortion wasn't possible in 1973. The Texas law it struck down was extreme in terms of the policy it established, but it wasn't extreme in the sense of being an outlier. Simply striking down the Texas law would have resulted in nearly identical laws in more than 30 other states being struck down too. It's hard to imagine this turn of events would not have made abortion a major source of political dispute.

The fundamental problem with all such "backlash" arguments is that, because judicial opinions don't actually generate any more backlash than policy judgments announced by other institutions, the only way to avoid backlash is just by not winning. Pro-choicers who agree with Ginsburg's take on Roe are far too optimistic about what abortion policy would have looked like without it. Contrary to conventional wisdom, effective opposition to legalizing abortion had stopped the state legalization drive in its tracks by 1971. For the reasons I outlined recently, I think many same-sex marriage supporters are being somewhat over-optimistic. Even if same-sex marriage continues to gain public support, bans on same-sex marriage are likely to remain durable in many state legislatures, where the status quo almost always has a major institutional advantage. Without a Supreme Court opinion ruling bans on same-sex marriage unconstitutional, it is likely that gays and lesbians in many states will be denied their fundamental marriage rights for a long time.

It should be noted, however, that despite some willful misreadings, Ginsburg has of course never argued that Roe was wrong; she has argued that it was premature. If little progress is made at the state level despite public opinion continuing to support same-sex marriage, I'm confident that the Court will be prepared to rule all state bans on same-sex marriage unconstitutional—if, of course, it retains a similar ideological composition that the next time a relevant case comes. There is a major potential downside risk though. Should a new Republican president elected in 2016 get the chance to replace Ginsburg and/or Breyer, we may look back at Perry as a major missed opportunity. Since the Court staying its hand this time was likely influenced by a theory about the effects of judicial review that is false, that would be very unfortunate.

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