The pundits are calling it an act of political courage, but by expressing his support for gay marriage in an ABC News interview, President Obama was merely acknowledging what most Harvard-educated constitutional law professors would have said long ago. The Constitution prevents the government from recognizing a marriage between one specific set of adults -- a male and a female -- and prohibiting it for everybody else.
That doesn't make Obama's declaration any less courageous, or politically risky. Mitt Romney was quick to say marriage is a legal question best left to the states -- like North Carolina, where voters yesterday amended their state constitution to ban same-sex marriages. (As did Obama, casting doubt on how much political capital he's willing to expend on this issue.)
But Romney's opinion goes against the trend in constitutional scholarship toward recognizing that the Constitution "changes" along with widespread public attitudes even if its text remains the same. The Supreme Court took practically a century after the passage of the 14th Amendment to deliver Brown vs. Board of Education ordering schools to be desegregated, and it took another decade for the federal government to enforce it in earnest. If the court had handed down such a ruling in 1880, it probably would have accomplished nothing more than to undermine its own authority. It took a growing recognition that segregation was not only wrong, but hurting the development of this country and staining its reputation in the rest of the world, before the Court worked up the courage to outlaw it.
Gay rights have followed a similar trajectory. Homosexuality has gone from being a criminal offense that could, and did, send writer Oscar Wilde to jail in England, to a comic staple in movies and TV shows, to a subject of serious constitutional study. The Supreme Court announced its arrival, in a sense, with the 2003 decision Lawrence v. Texas, which held that a Texas law making homosexual conduct a crime violated the Constitution's Due Process Clause. The very argument would have been unspeakable 30 years before, and inspired Justice Antonin Scalia to pen one of his scathing dissents:
The Texas law "undoubtedly imposes constraints on liberty," he wrote.
So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to `liberty' under the Due Process Clause, though today’s opinion repeatedly makes that claim.
Most mainstream scholars hew to Justice Anthony Kennedy's majority opinion in Lawrence, however. He held that the Texas law flunked the test for laws that substantially affect the rights of a minority, which is whether they serve a legitimate government purpose.
The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.
Since then, gay-rights activists have focused on legalizing marriage. That's a much tougher sell to the general population, as witnessed by the 60% margin in favor of the North Carolina measure. Marriage, after all, is a religious institution as well as a legal union regulated by the government. But on a theoretical level there's not much difference between the Virginia law that banned interracial marriages, which was overturned by the 1958 decision Loving v. Virginia, and the California ban on gay marriage that the Ninth Circuit tossed out in February.
In both cases, the law targets specific sets of adults for different treatment based on the preferences of the majority of voters, but without a compelling governmental purpose other than political popularity.
I'm not saying the preference of the voters is irrelevant; I'm saying that the prevailing view of the Constitution these days is that it protects minorities from popular laws that single them out for different treatment. And given that, Obama the Harvard Law grad and onetime Con Law professor didn't have much room to dissent. Romney, who went straight into business after getting a combined J.D./M.B.A. at Harvard, maybe has more room to play to the crowd.
Scalia, in his fulminations over the Lawrence decision, did point out what he believes is the source of all these subversive ideas. He could hardly be surprised by today's presidential declaration.
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.