March 29, 2013
Some commentators, myself included, have analyzed the cases from a historical perspective: that is, asking how history will judge the decisions made by the Supreme Court.
It’s possible, as some of the conservative justices seemed to believe at oral arguments, that allowing same-sex couples to marry would fundamentally change the definition of an institution “that’s been around since time immemorial,” and that the broadening acceptance of same-sex marriage is due not to natural social progression, but to “politically powerful” lobbying efforts “supporting the enactment of same sex-marriage laws in different States” (both of those quotes are attributable to Chief Justice Roberts).
If that truly turns out to be the case, then a Supreme Court decision in either case that refuses to recognize same-sex marriage is highly prudent, protecting the sacred institution of against the capricious whims of politically powerful interest groups, and history will judge such decisions thus.
As some have noted, however, same-sex marriage is nothing new; it has, in fact, been around for thousands of years.
Further, based on current trends and the available evidence, it is far more likely that in thirty years, because of natural progress, same-sex marriage will be perfectly acceptable – and legal – nationwide.
Should this future come to pass, history won’t be so kind to the Roberts Court for a decision failing to recognize same-sex marriage rights; a Windsor or Perry decision that fails to recognize the right of same-sex couples to marriage would be viewed as backwards and parochial by future generations.
While it likely may not be egregious enough to be in the same category as Dred Scott v. Sandford or Plessy v. Ferguson (although I could be wrong), it could be about on par with Minor v. Happersett, decided 228 years ago today, on March 29, 1875.
What makes Minor so ignominious for the Supreme Court? The ruling held that women, unlike men, had no right to vote.
Granted, this case was decided before ratification of the Nineteenth Amendment, but the fact remains that the Supreme Court had the opportunity to save women some 45 years of waiting and quite a bit of effort by simply opting to avoid a narrow reading of the Constitution.
Minor started as a challenge by Virginia Minor to a section of the Missouri State Constitution, which read, “Every male citizen of the United States shall be entitled to vote.”
After Minor applied to register to vote and was denied, and then brought suit, claiming that the right to vote was one of the “privileges or immunities” Fourteenth Amendment, and therefore, no “State shall make or enforce any law which shall abridge” that right.
The Supreme Court did not agree, finding that the Privileges or Immunities Clause did not protect any right of suffrage, and, thus, Missouri’s constitution did not infringe on the U.S.’s.
The Court offered as many details as it could dig up to support this finding, including noting that women were explicitly denied the right to vote in nearly every state either in its constitution or by statute.
In addition, the Court also noted that no state that had restricted the right to vote to males had been excluded from rejoining the Union after the Civil War.
But what about the Fifteenth Amendment, which specifically protects “the right of citizens of the United States to vote,” free from any racial discrimination?
The Minor Court held that, if the right to vote were truly one of the Fourteenth Amendment’s “privileges or immunities,” the Fifteenth Amendment would be completely unnecessary.
Moreover, in U.S. v. Cruikshank, decided later that same year, the Court further discussed voting rights, specifically referencing Minor, finding that determining who has the right to vote is a power reserved for the individual states, and that the federal government only got involved, at least as far as the Fifteenth Amendment was concerned, to ensure that a citizen’s right to vote was not obstructed because of that person’s race.
It’s not exactly clear how the Court would have resolved a challenge to a state law that prohibited anyone but whites from voting, but, thankfully for the preservation of its own brand of logic, it never had to.
Despite how foolish the Minor Court appears to us today, it seems that the Supreme Court hasn’t come too far since then.
After all, a majority of justices on today’s Court, just as in 1875, seem to want to deny a constitutionally-guaranteed right to a class of individuals by claiming that it is within the sole purview of the individual states to regulate that right.
Of course, a decision in Windsor and Perry hasn’t been made yet, so the Court still has the opportunity to prevent building itself a Minor-like legacy.
Whether the Court recognizes that it at this junction, though, remains to be seen.