The United States Supreme Court usually makes decisions that are in step with the thinking of American society as a whole, even if that society does not yet realize the implications of its own changing viewpoints. The Court adapts to most changes in society without being disruptive, reflecting changes over time and in line with majority opinion and thinking rather than forcing changes upon the nation.
The rules by which courts are governed control the relationship between higher and lower courts. The decision of a higher court controls the lower courts within its jurisdiction. This doctrine of precedent, called stare decisis, means that there will be consistently similar outcomes in similar cases. A court will deviate from its own prior decisions only when a departure would not upset settled expectations, the prior decision reflects judge-made law rather than a statute, and other courts have questioned the validity of the prior decision.
The Supreme Court's decisions about sex, race, and marriage have often been somewhat controversial when made, but ultimately the majority of people in the country quickly agree that they were correctly decided. Because sex and marriage are such intimate and personal issues, however, it is not until a new concept works its way through the courts that many of us think through the implications of a decision.
Controversial but ultimately widely-supported Supreme Court Decisions
Take, for example, the Supreme Court's cases that were somewhat shocking when made but which, once we had thought about it, most Americans supported. In Brown v. Board of Education (1954), the Court held unanimously that state laws establishing separate but equal schools based on race was inherently discriminatory. Today no one challenges this, though it took the U.S. Army and federal marshals to enforce it when originally decided.
Prior to the Brown decision, however, many other state and federal courts had worked through the issues and held that race discrimination was improper. Thus in Murray v. Maryland (1936), Missouri ex rel. Gaines v. Canada (1938), Sweat v. Painter (1938), and McLaurin v. Oklahoma Board of Regents (1950), the Supreme Court and many lower courts had decided in a variety of contexts that having "separate but equal" educational systems was absurd and inherently unfair. Then-NAACP attorney and later Supreme Court Justice Thurgood Marshall had spent decades building a national consensus that largely ensured that the majority of Americans were in agreement with the dismantling of American apartheid.
Moving from education to interpersonal relations, in Loving v. Virginia (1967), the Supreme Court unanimously held that Virginia's prohibition on interracial marriages was unconstitutional, ending all race-based legal restrictions in the country. But before the issue of interracial marriage got to the Supreme Court, there had been twenty-years of development of the issues, beginning with the California Supreme Court's decision in Perez v. Lippold (1948) that race-based regulation of marriage was unconstitutional under the 14th Amendment to the U.S. Constitution. During those years many courts had dealt with the issue, so that by the time of the Supreme Court's decision a consensus was emerging throughout the country on the validity of segregation in America.
Roe v. Wade
However, in Roe v. Wade (1973) and its companion case Doe v. Bolton (1973), the Supreme Court created a new precedent that forced change for which the country was not ready by ruling that a federal constitutional right to privacy exists, and that this right to privacy gives a right to abortion. The result has been civil strife, with protests that have gone on unabated for forty years, and which bitterly divides America to this day. A key factor in the controversy was that the issues had not been fully developed in the lower courts and in society as a whole before they were decided by the Supreme Court.
The distinguishing feature of the Court's decisions in the Roe v. Wade and Doe v. Bolton cases that made them fundamentally different from the other cases it had decided on the subject of sex was that the Court went beyond ruling on the question before it, which was the constitutionality of extreme state anti-abortion statutes in Texas and Georgia. The Texas statute at issue criminalized assisting or advising a woman to get an abortion for any reason other than for saving the life of the mother. Georgia required that abortions be conducted in accredited hospitals, required approval by a hospital abortion committee and confirmation by other physicians, and limited abortion to Georgia residents.
By going far beyond what the American people thought necessary to decide those cases and declaring a fundamental constitutional right to abort a pregnancy, the Supreme Court adopted a medical approach to which much of society has remained hostile ever since. Decades after the decision, the issues are as controversial as they were when the Court decided that there was a constitutional right to abortion.
Back to incremental change
In contrast to the decision in Roe v. Wade in 1973, the Supreme Court made very limited rulings in the same-sex marriage cases that came before it in 2013. Chief Justice Roberts has long advocated restrained and incremental decision-making, using procedural devices to avoid contentious substantive decisions. The Court under this Chief Justice has directly overruled only three cases based upon the Constitution: Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010) (1st Amendment right to political speech), Montejo v. Louisiana, 556 U.S. 778 (2009) (5th Amendment rights in a criminal case), and Shelby County, Alabama v. Holder, 570 U.S. __ (2013) (federal approval of state voting procedures).
It should not have come as a big surprise, but nonetheless has done so, that in 2013 the Court issued extremely limited rulings on the subject of same-sex marriage, neither of which implicated the U.S. Constitution. Opponents of same-sex marriage seemed to let their fears get ahold of them, while advocates assumed that the logic of their arguments was unassailable and that same-sex marriage would be declared a fundamental right.
Hollingsworth v. Perry
In Hollingsworth v. Perry (2013), the U.S. Supreme Court dismissed the appeal of the case, holding that the court of appeals and the Supreme Court itself lacked jurisdiction. The California Supreme Court had held that prohibiting same-sex couples from marrying violated the equal protection clause of the California Constitution. In response, the voters of California passed a constitutional amendment, called Proposition 8, to reinstate the ban. The California Supreme Court declared that amendment to be valid because same-sex couples could have domestic partnerships and thus had all of the benefits of marriage but without the name.
Two same-sex couples brought a federal lawsuit against the Governor, attorney general, and state and local officials in California, alleging that the prohibition on marriage in name and fact exactly equal to that of other married couples violated the U.S. Constitution. The state officials refused to defend the law, and the district court judge allowed interested parties to intervene as defendants, because California Constitution and state law permit the sponsors of initiatives to defend those initiatives in court if the state government refuses to do so.
Proposition 8 was struck down by the federal trial court, which held that Proposition 8 violated the Fourteenth Amendment to the U.S. Constitution. After that decision, the state government completely stopped defending Proposition 8 - but a group that was a proponent of that amendment stepped in to defend the law. It was these sponsors who appealed to the 9th Circuit and ultimately to the Supreme Court.
The U.S. Ninth Circuit Court of Appeals affirmed the trial court's decision that Proposition 8 was unconstitutional, finding that it was enacted because of disapproval of same-sex couples as a class and that class-based distinction was prohibited by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
The United States Supreme Court decided to hear the case and review the decision of the court of appeals. The nation held its breath, and the blogosphere was full of dire predictions on both sides as to whether the Supreme Court would hold that same-sex couples were entitled to marriage, both in fact and name, and what that would mean for the traditional opposite-sex family unit consisting of one male and one female.
But the Supreme Court did not ultimately decide the merits of whether gay marriage should be declared to be a constitutional right, instead holding that the sponsors of Proposition 8 lacked standing in federal court to have appealed the district court's decision because they lacked any personal stake in the outcome. The U.S. Constitution requires a personal stake, and the California Constitution could not give the proponents of Proposition 8 standing in federal court.
Because the Supreme Court declared that there were not two proper parties before it to be heard, it affirmed the district court's decision. This is not at all the same as holding that there is a federal constitutional right to same-sex marriage, but instead allows the issue to be considered by lower courts, and either for a national consensus to develop or for development of the issues to the point at which a sharp split among the lower courts requires the Supreme Court's intervention.
United States v. Windsor
In 1996, Congress passed and President Clinton signed into law a bill called the Defense of Marriage Act, Public Law 104-199, and codified as 1 U.S.C. § 7. The facts of the case of United States v. Windsor (2013) related to whether that federal statute violated the U.S. Constitution by federalizing a state-law issue.
Edith Windsor was married and lived in New York state, which recognized her Canadian same-sex marriage to Thea Spyder. When Spyder died, she left her entire estate to Windsor. But because of the Defense of Marriage Act, the IRS could not recognize her marriage, even though New York State did so. The result was that Windsor had to pay more than a third of a million dollars in inheritance tax, which she would not have had to pay if the IRS had recognized her marriage. The U.S. District Court held that the prohibition of recognition of the valid state marriage by the federal government was unconstitutional.
Although the federal government, through the U.S. Attorney General, had decided not to defend the DOMA, the House of Representatives intervened and was represented by the Bipartisan Legal Advisory Group of the House. The Department of Justice did not defend the law, but argued that it was unconstitutional. Unlike the California case, however, the intervening party was an entity of the United States House of Representatives and thus had standing. The Supreme Court held that the government's refusal to defend DOMA did not result in a lack of jurisdiction, unlike in the California case, because the government still refused refund Windsor's money despite its announcement of not defending the statute.
The court was presented with a situation in which the state accepted same-sex marriage for all purposes, but the federal government refused to recognize those same-sex marriages. Marriage has always been a function of state government, so domestic relations courts are always state courts. Federal laws and regulations do occasionally overrule a state's laws in some respects when federal interests are involved, such as where an immigrant seeks admission to the country or in determining whether a person qualifies for Social Security benefits.
The Court found that the marital status of same-sex couples was entitled to heightened scrutiny under Equal Protection clause, because distinguishing valid from invalid marriages based upon sexual orientation is inherently discriminatory. The majority opinion of the Supreme Court focused on the expressed intent of the statute to impose inequality, restrictions, and disabilities, and creating unequal marriages because of the dislike of the majority rather than legitimate policy concerns.
Letting society decide
In practical terms, these two decisions avoid deciding the ultimate issues on same-sex marriage, thus allowing state and federal governments and courts to decide those issues. In states that recognize same-sex marriage, the federal authorities are bound by that recognition, but other states remain free to interpret their own constitutions and statutes, and the trial courts will see many cases over the next decade applying those state constitutions and statutes to the federal and state constitutions.
The effect of two people being married has profound implications in the law. Federal, state, and local governments treat married people as being one person for many purposes, and the answer to the question of whether two people are or ought to be married is a question as potentially destabilizing to American society as racial segregation or abortion. Over time, the lower courts either will reach consensus or will remain divided. If consensus is reached, it may not be necessary for the Supreme Court to decide anything. If consensus is not reached, then a large number of judges will have considered the issues and people throughout the nation will have thought and debated the matter in detail. The Supreme Court will thus have set up a situation in which its ultimate decision will be approved of as being just and natural, as it will be based upon a large body of information and informed debate.