The Future of Same Sex Marriage

JB

Once a majority of the New York Court of Appeals stated that "our Equal Protection Clause `is no broader in coverage than the federal provision,'" the result was a foregone conclusion. (A foregone conclusion, that is, based on a prediction of what the U.S. Supreme Court and most federal courts would probably do today.) In both Massachusetts and Vermont, courts read their state Equal Protection Clause (or common benefits clause, the Vermont equivalent), in ways significantly different from the federal Equal Protection Clause. That gave these courts room for maneuver, and allowed them to conclude that denial of marriage rights to same sex couples violated basic principles of equality.

However, when the New York Court of Appeals began with the assumption that it must follow federal constitutional doctrine in its current form, the result was disappointing but not at all surprising. Supporters of same-sex marriage are well aware that the last place they want to litigate same-sex marriage claims right now is in the federal courts.

The court-based strategy has been premised on finding states whose courts do not regard their constitutional doctrines as mirror images of the current U.S. Supreme Court's but have a significantly more progressive cast. The idea is that litigators would raise state constitutional challenges in these courts, hoping to get judicial decrees either ordering same-sex marriage outright (as in Massachusetts) or sending the issue back to the state legislature with instructions to come up with an equitable alternative (as in Vermont). Then supporters of same-sex marriage would fight hard to prevent the inevitable backlash effects and hope that the public would get used to the idea, which, in Vermont and Massachusetts it mostly has. After a number of successful state court victories of this type, other states would eventually come around, and, after winning victories in a majority of states, litigators would finally be ready to approach the federal courts.

However, this court-based strategy cannot be the dominant strategy for success for two reasons. First, there are only a limited number of state courts that fit these characteristics. Second, the strategy is far too optimistic about backlash effects. People feel very differently about legislatures creating rights for same sex couples than they do about courts doing the same thing. Winning in the courts is fine, but unless there is already significant public support for what courts do, choosing a litigation strategy often leads to populist reprisals that combine opposition to change on the merits with opposition simply because a court ordered the reforms. Unless supporters of same-sex marriage can quickly mobilize to respond to the backlash, their victories may be short-lived.

The better strategy in many states, perhaps most, is to work for legislative reforms directly, pushing for same-sex marriage but settling for civil unions if that can be achieved. If people win in legislatures, the courts tend to follow; if lots of state legislatures recognize same-sex marriages, civil unions or other marriage equivalents, it will become much more obvious to courts that denying same-sex couples the right to legally sanctioned partnerships treats them unfairly. That is to say, courts tend to change their minds just about when legislatures do: sometimes a little before and sometimes a little after. It is a mistake to think that all or most state courts will be significantly ahead of their legislatures on this issue. The Vermont and Massachusetts courts were ahead of their legislatures, but they are not necessarily a good sample of state supreme courts, as the New York decision suggests.

Proponents of same-sex marriage already are working for legislative reform as well as in the courts. They recognize that the more avenues of reform you pursue, the more likely it is that you will make progress. The problem with a multipronged strategy, of course, is limited resources. But an even more important resource will be patience; this will be a long struggle for equality.

One effect of the loss in New York may be a renewed emphasis on going to legislatures for reform rather than constitutional challenges in the courts, especially, as the number of likely state court venues diminishes. If that leads to a series of legislatures making changes on their own, without being prodded by courts, it will greatly enhance the democratic legitimacy of the movement for same sex marriage. And if that happens, it may turn out that the loss in the New York Court of Appeals was not a serious setback for same-sex marriage at all, but a blessing in disguise.