Last week, when the 9th Circuit Court of Appeals struck down California's Proposition 8, the issue of same-sex marriage moved a step closer to the Supreme Court. By deeming unconstitutional the ban on marital rights for same-sex couples, the 2-1 decision reinforced a growing sentiment that marriage equality for gay couples is not the taboo issue it may have been in the past.
To discuss this confrontation between traditional sexual mores and the kind of social changes that led to the California case, the Phi Beta Kappa Visiting Scholar Program a few days ago welcomed Pamela S. Karlan, co-director of the Supreme Court Litigation Clinic and the Montgomery Professor of Public Interest Law at Stanford University.
"We are in a generation where nearly two in five Americans now live in a jurisdiction where it is legal for same-sex couples to marry," Karlan said. "Justices are going to be asked to choose sides on an issue that many Americans care about passionately."
With a touch of humor, Karlan, a former NAACP Legal Defense Fund attorney, focused the discussion on Christian Legal Society v. Martinez, a 2010 Supreme Court decision upholding a law school's policy that requires student organizations to accept all students regardless of their status or beliefs. In that case, the University of California's Hastings College of Law had refused to recognize a Chrisian Legal Society chapter because of the society's bylaws that excluded LGBT students. The Christian Legal Society then filed a lawsuit against the university in California federal court, alleging that its First Amendment rights had been violated. The group invoked claims of constitutional protection, signaling that the battle over gay rights – or the culture wars, as Karlan called the debate – may hinge on how the Supreme Court deals with the losing side.
"No one has seriously suggested that opposite-sex couples will now have a cause of action against same-sex couples if these laws are changed," Karlan said. "That kind of claim won't rise." The issue, whe went on, is the Supreme Court will address the wishes of marriage traditionalists.
Citing landmark Supreme Court cases, such as Loving v. Virginia, which dealt with interracial marriages, and Lawrence v. Texas, which struck down sodomy laws, Karlan pinpointed opinions that crept around the issue of same-sex marriage, either ignoring fundamental questions or angrily confronting the issues while grasping at remnants of a dying world view.
"The barely suppressed rage in Alito's dissent supporting the Christian Legal Society may reflect who's winning the culture wars," Karlan quipped, referring to Samuel Anthony Alito Jr., who was elevated to the Supreme Court by President George W. Bush.
Karlan noted that while the Supreme Court majority framed the issue around the university's "all-comers" policy, the dissenting opinion insisted that the policy singled out certain kinds of member-exclusion policies. For Karlan, this debate over discrimination and fundamental liberty interests called to mind the a similar issue in Lawrence.
"I think Lawrence has to be understood as a case about equality as well as liberty," she said. "It was always understood as a case equal dignity and choice. The Court signalized a new willingness to think about gay discrimination cases under the Equal Protection Clause."
Questions from the audience quickly turned back to the recent 9th Circuit decision, and where Karlan saw the Supreme Court standing on the issue. "I don't know if any of the parties will move for rehearing en banc," she said. "I don't think the 9th Circuit designed the opinion to give the Court a roadmap for how to write their opinion if the case comes before them. I think the 9th Circuit tried to write the opinion narrowly, just to California."
Isaac White, a first-year Miami Law student, asked whether "social awakening" in America might propel the Supreme Court to view sexual orientation under strict scrutiny standards. "The tiers of scrutiny are themselves starting to break down a bit," Karlan replied. "I think the Supreme Court will just declare that this is irrational because the distinctions have no rational basis. Animus views toward a specific group is not a legitimate government purpose."
Karlan's appearance was sponsored by the University of Miami Delta of Florida chapter of Phi Beta Kappa, the departments of Political Science and Religious Studies, the School of Law, the School of Business Administration, and the College of Arts and Sciences. The Visiting Scholar Program offers a platform for scholars, students, and faculty members to exchange ideas and contribute to the intellectual life on Miami Law's campus.