Justice [Antonin] Scalia: [W]hen did it become unconstitutional to exclude homosexual couples from marriage?  1791?  1868, when the Fourteenth Amendment was adopted? . . . Has it always been unconstitutional? . . . You say it is now unconstitutional.

[Theodore Olson, attorney arguing that Proposition 8 is unconstitutional]: Yes.

Justice Scalia: Was it always unconstitutional?

Mr. Olson: [W]hen we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control . . .

Justice Scalia: When did that happen?  When did that happen?

Mr. Olson: There’s no specific date in time.  This is an evolutionary cycle.

Justice Scalia: Well, how am I supposed to know how to decide a case, then, if you can’t give me a date when the Constitution change[d]?

—Proposition 8 Oral Argument

March 26, 2013

Conservatives are waiting around for the bad news coming in June from the Supreme Court “gay-marriage” decisions.  There is a way out, even at this late date, but it takes some explaining.  The short version is that the Court started this culture war in 2003, and the war cannot end until the Court is removed from it.

The “evolutionary cycle” to which Mr. Olson refers spans only ten years.  The Court fired the first shot by deciding in Lawrence v. Texas (June 2003) that the U.S. Constitution guarantees citizens the right to sodomy.  In November of that year the Massachusetts Supreme Court threw kerosene on the fire, finding that the Massachusetts constitution, dating to the Pilgrims, mandated “gay marriage.”  If Massachusetts wanted gay marriage, that was fine with the rest of the country, but the concern was that the federal courts, through the Full Faith and Credit Clause, which requires each state to honor the laws and court decisions of every other, could impose the aberrant Massachusetts marriage on another state—e.g., Ohio would have to recognize the Massachusetts marriage if a gay couple moved there.

Gay political power, however, ran into a backlash.  Politicians jumped on the traditional-marriage bandwagon.  Bill Clinton said that the gay-marriage issue cost the Democrats the 2004 election.  It also prompted an attempt to take gay-rights cases away from the Supreme Court.  The 1996 Defense of Marriage Act (DOMA) provides that one state need not recognize a gay marriage from another, but in 2003, many feared that the Court was poised to sweep DOMA aside as a violation of the Full Faith and Credit Clause.

In October 2003, House Republicans introduced H.R. 3313, a bill “to limit Federal court jurisdiction over questions under the Defense of Marriage Act.”  A fierce debate ensued.  Rep. Jerry Nadler (D-NY) argued against the bill: “Feel free to hate if my colleagues must, but please leave our Constitution, leave our liberties, leave our civil liberties that define this Nation and make it what it is, leave it alone.”  On the other side, Rep. Peter King (R-NY) said,

If Congress is not the check on the overreach of power by the judiciary where is it?  I will say Congress is the check . . . We absolutely do not want to see Massachusetts law imposed upon the entire United States of America.

The House voted 233 to 192 to strip the federal courts of any jurisdiction over cases involving DOMA.  But the bill died there because the Bush administration abandoned it.  President George W. Bush made no effort to get it through the Senate.

Now, we are told, the political climate has changed, and the public is demanding gay rights.  In March, Chief Justice Roberts said, “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”  But if the politics are now pro-gay, why are homosexual activists looking to the Court for help?

California’s Proposition 8, Mr. Olson conceded, gives civil unions the same rights as marriage, prompting Chief Justice Roberts to ask, “same sex couples have every right, it’s just about the label?”

Olson answered, “The label ‘marriage’ means something.”

To which Chief Justice Roberts replied,

Sure.  If you tell a child that somebody has to be their friend, I suppose you can force the child to say, ‘This is my friend,’ but you change the definition of what it means to be a friend. . . . [A]ll you’re interested in is the label and you insist on changing the definition of the label.

Is the Supreme Court a good venue for determining gay rights?  In Lawrence, the Court found that a Texas law prohibiting sodomy discriminated in favor of heterosexuals.  So if a law criminalizing sodomy is discriminatory, what about laws denying the right to marry, file a joint tax return, or collect a spouse’s pension?  The federal government, under DOMA, recognizes only heterosexual marriage for purposes of joint tax returns, Social Security, and veteran’s benefits.  That discriminates in favor of heterosexuals and involves a lot of money.  The Court had opened the door for gay-rights challenges to a host of federal and state laws.  And in June, the Court is likely to find that, although it has been around since time immemorial, marriage has no rational basis.

Even now, after the cases have been argued and conservatives are braced for a bad result, Congress could get us out of this if it would.  Most of us view the Supreme Court as the ultimate arbiter of constitutional questions.  The Constitution, however, does not assign that role to the Court.

There are two ways to remove a case from the Supreme Court’s docket: by constitutional amendment, and by a statute limiting the Court’s appellate jurisdiction (the authority to hear an appeal).  It’s obviously too late now to try for a constitutional amendment, but what about the statutory route?  Article III of the Constitution gives Congress a democratic check on judicial power.  The Court’s only constitutionally granted jurisdiction is for suits involving foreign ambassadors and those involving a state.  Congress has full control over the Court’s authority to hear any appeal, as well as the very existence of the federal district courts.  The Supreme Court, as far as the Framers were concerned, can be limited to cases involving ambassadors and those in which a state is suing the federal government or another state.  Article III gives the people the choice—a simple law passed by Congress and signed by the president can remove, or “strip,” any class of case from the Court’s appellate jurisdiction.  That means the Court can’t lawfully interfere with the issue anymore.  The stripped issue remains in the states, to be decided by their legislatures and courts.

Congress can even strip the Court of jurisdiction after a case has been argued in front of it and while the Court is considering its decision.  Congress, after the close of the Civil War, believed it should determine, without Court interference, the appropriate policy for reconstructing the South.  The policy was at issue in Ex Parte Mc­Cardle.  After oral argument, it looked very likely that the Court was going to throw out Congress’s reconstruction plan.  Three days later Congress stripped the Court of jurisdiction to decide the case.

Congress, as part of its plan, was pressuring the Southern states to ratify the 14th Amendment as a price of regaining full political rights; if Congress’s plan failed, the 14th Amendment was likely to go down with it.  President Andrew Johnson vetoed the stripper, but Congress overrode the veto, with the House voting 111 to 34.  The Court held that Congress had express constitutional authority to control the Court’s jurisdiction:

Without jurisdiction the court cannot proceed at all in any case.  Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the Court is that of announcing the fact and dismissing the case.

So much for the ultimate arbiter.

Justice Elena Kagan believes that Congress was badly motivated when it passed DOMA.  She asked, “Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth?”  The New York Times editorialized (March 27) that Mr. Olson had the benefit of “solid logic” on his side, noting the Court has “declared marriage a fundamental right,” and that society had “no rational basis denying same-sex couples the dignity that marriage affords.”  Federal courts are not authorized to give advisory opinions; Article III requires a “case or controversy.”  The DOMA case involves a New York taxpayer seeking an estate-tax marital deduction.  In the district court the federal government agreed with the taxpayer that DOMA denying her the benefit was unconstitutional.  That should have ended the case, but the federal government appealed.  (Only in Alice in Wonderland would you appeal a case you have already won.)  The DOMA case is in a unique procedural posture since the government, the appealing party, is not asking the Court for any remedy: It wants DOMA to go down.  President Obama has taken the bizarre position that he believes DOMA is unconstitutional—and he won’t defend it in court—but his agencies, like the IRS, will enforce it until the Court throws it out.  It has been clear, since Thomas Jefferson refused to enforce the Alien and Sedition laws, that a president, if he is true to his oath, cannot enforce a law he believes unconstitutional.

The current Supreme Court cases will not end the federal debate on gay marriage.  Gay litigation strategy, intelligently, is saving its harder cases—e.g., the Full Faith and Credit section of DOMA—for later.  (The current case involves DOMA’s definition of marriage as between a man and a woman for federal statutory purposes.)  The history of Roe v. Wade demonstrates that Court intervention doesn’t settle culture-war issues.  That can only be done by a democratic consensus.

Even now, a simple law following the McCardle model could get us out of this.  The politics of it may be daunting, but you never know until you try.  The effort would be, as they say, a learning experience for all parties.