Cristal Duran
POSC 375
October 26, 2017
SAME SEX MARRIAGE
Same sex marriage has been a controversial topic that has been in the center of political debates since the late 1900’s. Marriage equality is both a state and federal issue, during the beginning of the fight for same sex marriage the federal government did not give same sex couples the same federal rights as heterosexual married couples. Each state had the right to choose what laws to implement in regards to same sex couples, and many at this time did not let same sex couples marry and denied them all rights that heterosexual couples had. Once some states started granting certain rights to gay and lesbian couples a huge group of individuals who believed marriage should only be between a man and a women came together to fight the states and political actors who supported same sex marriage. Rosenberg’s “The hollow hope” (2008), talks about the history behind same sex marriage and the social and political impact it had on society. If there was to be social change in regards to same sex marriage, there would be a change in the whole court dynamic and how society addresses issues. Full equality for same sex couples today would mean them having all of the same titles and benefits as heterosexual couples across the board without backlash from society. There are many ways that same sex marriage supporters went about getting this equality, such as litigation, which Rosenberg talks about throughout his book.
Gerald N. Rosenberg’s, “The Hollow Hope”, talks about the history of same sex marriage and the political impact surrounding this issue and how society responded to court decisions. Rosenberg looked at litigation at this time and used it to demonstrate how it could impact social reform and talked about how the decision in Baehr v. Lewin (1993), seemed to be the case that would start social reform in regards to litigation. Before any cases were brought and decided by a state’s supreme court same sex couples could not marry or retain any of the rights that heterosexual married couples had at the time at the federal and state level. The Hawaii Supreme Court in Baehr v. Lewin (1993) ruled that when Hawaii refused to recognize a same sex couple’s marriage it violated their constitution’s equal protection of their laws. The court let the state show that this statute “further compelling state interests and its narrowly drawn to avoid unnecessary abridgements of constitutional rights” (Rosenberg, pg.343). After this case came Baehr v. Miike (1996), which said that the state of Hawaii had failed to do what the previous court case had required of them and thus resulted in marriage licenses being distributed to same sex couples. Rosenberg talks about how these cases did not last long and fueled the anger of those who opposed same sex marriage instead of bringing about change for those who supported it. We started to see civil unions after the results of the Baker v. Vermont (1999) case. In the Baker decision the Supreme Court ruled that the state’s refusal to give same sex couples marriage licenses went against their civil marriage right under their Constitution. Same sex marriage supporters did not like the fact that they were still being denied the right to be married and claimed it was a ““separate but [almost] equal” status” (Rosenberg, pg. 346). The House was now being controlled heavily by Republicans due to the emergence of the civil unions and showed how society was not ready to take on this social reform. Rosenberg talks about how the use of litigation was more successful in Vermont than in Hawaii due to the fact that the Supreme court was aware that this form of social reform would not do well so they ordered for something that was not “full marriage equality” (Rosenberg, pg. 347). The difference between Hawaii and Vermont was the fact that Hawaii had no support from the public but still decided to use litigation that aggravated the opponents of this issue. Although both of these states passed bills as a result of litigation none of these states legalized same sex marriages. It was not until 2003 did this happen in a case called Goodridge v. Department of Public Health (2003). The Goodridge decision said that creating “second-class citizens” was against their constitution and once again the courts gave the legislature time to change this law. At this time society was not ready for the social reform that would could from this decision and there was major backlash. Not only did the public oppose this decision but politicians did also. Many religious groups and churches were devastated over the decision. The governor of Massachusetts at the time, Mitt Romney, and even President Bush, were not shy about stating their strong opposition to same sex marriage. After the Goodridge decision there were many states who slowly started to give same sex couples more rights. Rosenberg talks about how groups such as, Lambda Legal, got involved in litigation and formed the organization called “Freedom to Marry” which aimed to get marriage equality and were constantly active in the movement (Rosenberg, pg.358). The elections of 2004 proved to be a critical time for same sex couples and marriage equality. At the time of the 2004 elections, “twenty-seven states, home to 43.4 percent of the U.S. population, prohibit same-sex marriage by constitution (Rosenberg, pg.364). Rosenberg focuses on newspapers and examines how much of the coverage there was about same sex marriage was negative or an increase of coverage was often due to other factors, such as the elections. Then the focus is turned to whether or not litigation did or did not seem to increase public support and social reform, which it did not. The results of Rosenberg’s studies was that litigation did not seem to influence public opinion in a positive way, even after the Goodridge decision (Rosenberg, pg.401). At the end of Rosenberg’s studies, he shows how although he believed litigation would help to bring about positive effects on same sex marriage it seemed to do the opposite and created more barriers for same sex couples. These cases and the backlash it caused, such as awakening the opponents which led to the banning of same sex marriage in many states, shows how supporters of same sex marriage strategy of litigation was not successful in their overall goal.
The use of litigation in this movement shows how there is some truth to the statement that the courts are the “weakest branch”. Using the courts as a primary method to create social change did not prove to be effective and shows how the courts do have a lot of limitations. The courts cannot produce any significant change on their own because they need approval and support from the other branches of government. Rosenberg refers to litigation as a “mopping-up operation” in which it cannot be used to create change but rather to implement it and make sure society is following the rules (Rosenberg, 2008). Overall courts have power but they are severely limited by the fact that they need support from the public and other branches of government. The role of the courts in producing significant social reform should be to use morality when looking at the law and interpreting it. The courts can only be effective in creating significant social reform when they have the support of the other branches of government and public support. Individuals and groups who wish to create social reform show resort to litigation once they established a support group and have media coverage to their issue as well to create awareness. There will be backlash when it comes to topics like same sex marriage and supporters should be prepared to not achieve their overall goal with just one case. Preparation for all of this is what is needed in order to be on the road for social reform.
Since Rosenberg’s investigation of the effect of litigation on same sex marriage there has been many different decisions and the start of social reform. In 2006 the question of banning same sex marriage at the federal level was brought up and both the House and the senate vetoed the constitutional amendment proposal of banning same sex marriage which Republicans brought up to protect what they believed was “traditional families” and they were even supported by President Bush (Roberts, 2006). This constitutional amendment was brought on by conservatives and there was mixed feelings about this decision. In 2009 Vermont was the first one in the union that used lawmakers to legalize gay marriage rather than using court action, and was the fourth state to allow same sex marriage (Garrison,2009). There was a lot of backlash after this decision and many groups, such as the National Organization for Marriage, had voiced their devastation and even made a commercial where they voiced how marriage should only be between a man and a woman. In 2012 the Supreme Court agreed to hear cases about the issue of same sex marriage. One of the cases was United States v. Windsor (2013), which involves the Defense of Marriage Act (DOMA), Windsor and her spouse were not recognized under this act and Windsor was being forced to pay hundreds of thousands in taxes. The court ruled that DOMA did violate the fifth amendment of the constitutional. This is an important case because before the issue of same sex marriage at the federal level was never addressed and this led the way to legalizing same sex marriage in many more states. In 2015 same sex marriage became a constitutional right. This case was Obergefell v. Hodges (2015), and it was a 5-4 decision with the more conservative judges sharing their dissents. Chief Justice Robert ruled the decision as an “act of will, not legal judgment” and stated how it is forcing social change onto all of these states who originally voted to ban it, and also goes on to say how they are changing the “basis of human society for millennia” (Liptak, 2015). This October, 2017 there has been another controversial case which has arisen about wedding cakes in regards to gay couples. The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission (2017) is about bakers who refused to make a wedding cake for a couple because it went against their religious beliefs. In this case the Colorado Civil Rights Commission stated that it was discrimination that is not allowed under their public accommodations law and later the courts affirmed the decision (Carpenter,2017). There has still not been complete social reform in regards to same sex marriage.
The case Plessy v. Ferguson (1896) majority opinion by Justice Brown which talked about the correct interpretation of the fourteenth amendment. Justice Brown said that the courts job is not to provide social equality or social change but rather just to provide equality in the law. The majority opinion then went on to say that the statement that “enforced separation of the two races stamps the colored race with a badge of inferiority” which they denied is true and debated that a change in the law and the power of the court will not produce social change with one decision (Rossum, Tarr, pg. 529). In the courts mind, they believed they did not have the power to bring on social reform by changing the law. I do not agree with the justices fully in regards to the statement that the law cannot create social reform. Although Rossenberg has shown how litigation alone is not enough to create social reform, it is still an important part of the process. The courts do have a lot of limitations but their decisions can influence how the public views issues. Lon Fuller believed that law should be implemented with morality and mind and that the law should also be interpreted with the added goal of social purposes (Altman, pg.57). I agree with Fuller in regards to same sex marriage, the majority opinion in Ferguson did not believe these two went together but in order to create social change the courts must look at their decisions with a moral aspect. This can help to create the change we need for social reform not only in regards to same sex marriage but to any other topic that may arise later on.
References
Altman, A. (2009). Arguing about law: an introduction to legal philosophy. Belmont, CA:
Wadsworth.
Carpenter, D. (2017, October 27). Opinion | There’s no free speech right to refuse wedding cakes
to gay couples. Retrieved October 27, 2017, from
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/27/theres-no-
free-speech-right-to-refuse-wedding-cakes-to-gay-couples/?utm_term=.07eecd17a8ca
Garrison, J. (2009, April 08). Vermont Legislature gives final OK to gay marriage. Retrieved
October 27, 2017, from http://articles.latimes.com/2009/apr/08/nation/na-gay-marriage8
Liptak, A. (2015, June 26). Supreme Court Ruling Makes Same-Sex Marriage a Right
Nationwide. Retrieved October 28, 2017, from
https://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html
Roberts, J. (2006, July 18). House Rejects Gay Marriage Amendment. Retrieved October 28,
2017, from https://www.cbsnews.com/news/house-rejects-gay-marriage-amendment/
Rosenberg, G. N. (2008). The hollow hope: can courts bring about social change?Chicago:
Univ. of Chicago Press.
Rossum, R. A., & Tarr, G. A. (2017). American constitutional law. Boulder, CO: Westview
Press.