Even Supreme Court justices care what people think about them, experts say. In their current same-sex marriage cases, they fear a big public backlash if they overreach. But history also shows such fears to be greatly exaggerated when a controversial decision’s time has come.
Like doctors, justices should try to do no harm. It is understandable for them to be concerned about a backlash like that which followed the 1973 Roe v. Wade decision that legalized abortion nationwide or Brown v. Board decision that desegregated public schools in 1954.
Social conservatives fired up by Roe fanned the flames of culture war politics that led to Ronald Reagan’s rise. Brown triggered fierce resistance, including hundreds of whites-only alternative schools, school busing riots, white flight and the rise of Alabama Gov. George Wallace and his far-right populism as a national force.
Such examples could lead the high court to punt on the two marriage equality cases it currently is considering, rather than declare same-sex marriage to be legal in all 50 states. For example, they could throw out both cases in a ruling that the petitioners lack legal standing to bring them to the high court.
But that, in my view, would be a cop-out. A better example than Roe or Brown for the Supremes would be another historic landmark that happened to deal directly with marriage rights: Loving v. Virginia, which legalized interracial marriages nationwide in 1967.
The ironic name comes from Richard Loving, a white man, who married Mildred Jeter, a black woman, in the District of Columbia, only to be arrested in Virginia under the state’s ban on interracial marriages. In overturning that law, Chief Justice Earl Warren ruled that marriage is one of the “basic civil rights of man” and its denial “on so unsupportable a basis” as race was “directly subversive of the principle of equality at the heart of the Fourteenth Amendment.
“Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
The result? Instead of a backlash, the decision was widely hailed as long overdue amid the other civil rights and social revolutions of the 1960s — even though a Gallup Poll at the time showed 73 percent of Americans opposed marriage between blacks and whites.
That resistance has melted away. As with other prejudices, opposition to interracial marriage in the abstract softens when you become familiar with real people who are in one.
Besides, it’s hard to argue that Americans would have been better off without the Brown decision or that the culture wars wouldn’t have roared ahead anyway without Roe.
Unfortunately, it is also hard to argue that resistance to marriage equality will quickly cease, regardless of how the high court rules, even though polls show public opinion has rapidly swung in favor of it over the past decades.
Last week, the court heard arguments in the case of Hollingsworth v. Perry, in which two California couples challenge Proposition 8, their state’s ban on same-sex marriage. A day later, the court heard challenges against a section of the federal Defense of Marriage Act (DOMA) that withholds about 1,100 different federal marriage benefits for same-sex spouses.
The DOMA case looks like the easier one for the Supreme Court to strike down. The plaintiff, Edie Windsor, 83, sued the federal government after the IRS cited DOMA in denying her a refund for the $363,000 in federal estate taxes she paid following the 2009 death of Thea Spyer, her partner for over 40 years. The couple had married in Canada in 2007, but lived in New York.
Had she been a man, she argues, she wouldn’t have been denied. Her case ironically combines two arguments often made by conservatives: states’ rights and opposition to the estate tax, which conservatives criticize as “the death tax.” Politics makes surprising allies.
In a further political irony, the case comes at a time when the Republican Party’s “autopsy” report after their November presidential election loss advises them to show more respect toward minorities, including gay voters, who voted against the party’s nominee by large margins.
Support for marriage equality under federal law offers a grand opportunity for the Grand Old Party to show it’s ready to be a party for all of the people.
Email Clarence Page at cpage@tribune.com.
