Marriage Equality Populism

By Associate Professor Douglas NeJaime

On November 6, voters in Maine, Maryland, and Washington will decide whether to allow same-sex couples to marry. In 2010, Maine voters repealed the marriage equality law that lawmakers had passed and the governor had signed. This time Mainers will be the first in the country to affirmatively vote on same-sex marriage. In Maryland and Washington, voters are being asked whether to approve or reject the marriage equality laws state lawmakers passed earlier this year. In all three states, recent polls suggest that marriage equality may win.

Of course, this would mark a game-changing moment in the political battle for same-sex marriage. But it would also significantly impact the legal battle raging in the courts. Currently, the U.S. Supreme Court is considering whether to weigh in on both the federal Defense of Marriage Act (DOMA) and California's Proposition 8, the state constitutional ban on same-sex marriage. Advocates at the leading LGBT legal organizations warned against the federal challenge to Proposition 8, worried about its uncertain fate at the Court. Throughout the litigation, they have worked - along with the City and County of San Francisco and prominent constitutional law professors - to frame the case as one about the unique situation in California. The Ninth Circuit agreed, finding that California, which allowed same-sex couples to marry before taking that right away and which provides a comprehensive domestic partnership system with the state-law rights and benefits of marriage for same-sex couples, did not have a legitimate interest in restricting marriage. Under the Ninth Circuit's holding, determinations regarding the constitutionality of other states' marriage bans require additional litigation. LGBT movement advocates, therefore, are hoping the Justices will pass on the invitation to review the Ninth Circuit's decision.

But in the event the Court takes the case, advocates have been doing everything they can to change the landscape of marriage equality before the Court decides. The more states that recognize same-sex couples' relationships as marriages and the more same-sex couples who get married, the more comfortable the Court - or at least Justice Kennedy, who holds the presumptively decisive vote - may be finding state marriage prohibitions unconstitutional. Advocates secured marriage equality in New York in 2011, and they are pursuing the cause in other states, through both litigation and legislation. If Maine, Maryland, and Washington begin to allow same-sex couples to marry, more states will move into the marriage equality column and many more same-sex couples will have legally recognized marriages. This may do much to move the Justices.

Yet, more importantly, the results in these three states will have come through public initiative votes, thereby imbuing the trend toward same-sex marriage with a new sense of populism. This may significantly impact how the Supreme Court approaches the issue. The Court rarely moves far ahead of public opinion, and it typically avoids rulings that declare the laws of a vast majority of states unconstitutional. Concerned about their institutional legitimacy, the Justices often hesitate to intervene in ways that contravene clear majoritarian preferences. Social conservative activists seize on and perpetuate this institutional concern. They paint existing marriage equality laws as the work of "unaccountable judges," and, once state lawmakers began to pass such laws, "out-of-touch legislators." And they warn the Supreme Court not to contravene the will of the voters on marriage.

If the marriage equality cause begins to win at the ballot box, it will be able to effectively counter these arguments with a clear sense of democratic legitimacy. This, in turn, may encourage the Court to exercise its democratically legitimate role in holding unconstitutional state laws that withhold marriage from same-sex couples. Accordingly, November 6 may not only mark a monumental achievement in the political fight for marriage equality but it may also change the complexion of the legal fight as well.