In case you haven’t noticed, the Constitution is being amended—though not according to the process our supreme law actually provides for. Which is, first, that two-thirds of both houses propose the amendment and, second, that the amendment then be ratified by the legislatures of three-quarters of the states. None of that has happened with the amendment we speak of: Neither house has even considered it, much less voted overwhelmingly to send it to the states for ratification.
The amendment about to be enacted thus will not become the 28th; you won’t find it in our Constitution. But it will reside in our constitutional case law, in a decision by the Supreme Court creating, as you may have guessed, a right to same-sex marriage. The Court recently took cases on the issue. It will hear arguments in April and render its ruling by early summer.
The movement for same-sex marriage has involved more than litigation strategy. The Wall Street Journal recently published a graph showing three “methods” by which same-sex marriage has been legalized in various states. Ballot measures have been used in three states, and state legislation in eight others. Both methods duly respect the authority of the people to decide issues the Constitution does not address—like the definition of marriage. But the third method used—“judicial decision,” in the Journal’s taxonomy—has taken that authority from the people of no fewer than 26 states. The Court’s expected decision this term will take it from the people of yet more; indeed, it will settle the issue in all the states.
We wish we weren’t so convinced of the Court’s likely decision in the several cases before it. But the Court’s four judicial liberals would seem definite votes for a right to same-sex marriage, as would Justice Anthony Kennedy, because of his opinions in cases involving gay rights. The justices also—just recently—actually took a step that is fairly read as indicating support for creating a constitutional right to same-sex marriage.
The action involves Alabama, where one of the state’s federal judges struck down state laws defining marriage as the legal union of one man and one woman. The judge ordered the defendant, Alabama attorney general Luther Strange, not to enforce the laws and denied his request to stay the injunction until the Supreme Court decided the cases now before it. The attorney general took his request for a stay to the federal circuit court of appeals, which also denied it, and ultimately to the Supreme Court, with the same result. Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented.
“When courts declare state laws unconstitutional and enjoin state officials from enforcing them,” wrote Thomas, “our ordinary practice is to suspend those injunctions from taking effect pending appellate review.” Last fall, the Court departed from that practice when it denied several stay applications by defendants seeking review of judgments invalidating state marriage laws. But in other same-sex marriage cases over the past year, the Court followed the ordinary practice and granted stay applications. Thomas distinguished between the cases in which a stay was denied and those in which one was granted, finding that the Alabama case was “like” the latter cases and thus “should have been treated no differently,” especially since the stay would have been in place for no longer than it took for the Court’s decision to be rendered.
That the Court declined the stay request means that same-sex marriages may lawfully take place in Alabama. Given the impact of that decision upon individual lives, it’s hard to imagine the Court would have denied the stay application in February only to say there is no constitutional right to same-sex marriage several months later. Thomas’s candid assessment is that the Court’s action “may well be seen as a signal of the Court’s intended resolution of that question.”
He added: “This is not the proper way to discharge our Article III responsibilities [deciding ‘cases and controversies’].” Indeed it is not. The justices should at least avoid the appearance of deciding cases without briefing and oral argument, of not thinking much about cases of such obvious importance, which would effectively amend the Constitution. More, the justices wanting to create a right to same-sex marriage should be asking themselves where their authority lies for deciding an issue that the Constitution does not speak to and whose resolution it leaves to the people. It’s not, we should say now, found in Article III of the actual Constitution.