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16. It Takes Two
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The Supreme Court’s recent decisions in United States v. Windsor and Hollingsworth v. Perry gave supporters of marriage equality and civil rights for gay Americans much to be thankful for. In Windsor the Court struck down the federal Defense of Marriage Act (DOMA), which denied federal benefits to couples validly married under state law. (Disclosure: I represented Edie Windsor, the plaintiff in the DOMA challenge.) And in Perry the Court held that proponents of a marriage-restricting initiative lacked standing to appeal a district court ruling striking down the results of the initiative, effectively reinstating marriage equality in California. 16. It Takes Two a constitution for all times These opinions come after years of grassroots advocacy and political action, as well as a carefully constructed litigation campaign, with supporters of marriage equality frequently invoking the Supreme Court’s 1967 decision in Loving v. Virginia as a guiding star. In that aptly named case, the Court held that Virginia’s criminalization of interracial marriage violated two provisions of the Fourteenth Amendment : the equal protection clause, because Virginia’s law could be explained only as the product of illegitimate racial prejudice, and the liberty element of the due process clause, because Virginia denied Mildred and Richard Loving “the freedom to marry” that “has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Restricting marriage to opposite-sex couples likewise relies on prejudiced, or empirically dubious, propositions about gay people and their families, and denies them a status that confers dignity and a bundle of tangible entitlements central to modern life. [54.226.68.181] Project MUSE (2024-03-29 13:34 GMT) pamela s. karlan But even as we embrace Windsor, Perry, Loving, and the rights of loving couples, we should remember that it takes much more than a celebrated judicial decision to realize constitutional values. Loving was the end point of a sustained assault on racial discrimination, and most of the troops in that campaign were not Supreme Court justices. For example, the Court’s foundational 1954 decision in Brown v. Board of Education, forbidding segregation in public schools, came after President Truman had already issued executive orders ending segregation in the military. When Brown reached the Court, President Eisenhower’s Department of Justice filed briefs urging the justices to hold racial segregation unconstitutional. And by the time the Court decided Loving, the vast majority of states had already repealed laws forbidding interracial marriage. Loving was decided a generation after the California Supreme Court, in Perez v. Sharpe, had used the Fourteenth Amendment to strike down California’s ban on interracial marriage. (In contrast to the California Court, a constitution for all times the U.S. Supreme Court disingenuously dodged the marriage issue for a decade, apparently because it feared that a decision striking down bans on interracial marriage would imperil support for Brown.) Rather than anticipating progressive social change, the Supreme Court most often reflects it. The Court did not express serious constitutional skepticism about sex discrimination until 1970, significantly after Congress had enacted the Equal Pay Act and forbidden sex discrimination in employment as part of Title VII of the Civil Rights Act of 1964. Similarly, by the time the Court struck down Texas’s sodomy statute in Lawrence v.Texas in 2003, most of the states that had at one time criminalized gay sex had abandoned those laws on their own. Even when the Court articulates constitutional requirements, the active participation of the political branches is needed to meet those requirements. Brown was decided in 1954, but in 1964, less than 2 percent of black schoolchildren in the South attended schools with even a single white student. Real desegre- [54.226.68.181] Project MUSE (2024-03-29 13:34 GMT) pamela s. karlan gation did not begin until the fall of 1969. Why then? Because the federal Department of Health, Education , and Welfare issued guidelines requiring desegregation and threatened to cut off essential federal funds to school systems that did not comply. How does this history—this interplay between courts and democratic politics—bear on the question of marriage equality? To begin, I cannot think of a contentious social issue on which public opinion has shifted more rapidly. We have moved in roughly a generation from a nation in which no state provided legal recognition to same-sex couples to one in which 30 percent of Americans live in states that provide full marriage equality...