Opinion

The beginning of the end of the gay marriage debate?

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Ilya Shapiro
Senior Fellow in Constitutional Studies, Cato Institute
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      Ilya Shapiro

      Ilya Shapiro is a senior fellow in constitutional studies at the <a href="http://www.cato.org/">Cato Institute</a> and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was Special Assistant/Advisor to the Multi-National Force-Iraq on rule of law issues and practiced international, political, commercial, and antitrust litigation at Patton Boggs LLP and Cleary Gottlieb LLP.

      Shapiro has contributed to a variety of academic, popular, and professional publications, including the L.A. Times, Washington Times, Weekly Standard, Roll Call, National Review Online, and from 2004 to 2007 wrote the "Dispatches from Purple America" column for TCS Daily.com. He also regularly provides commentary on a host of legal and political issues for various TV and radio outlets, including Fox News, CBS, WGN, Voice of America, and American Public Media's "Marketplace."

      He is also an adjunct professor at The George Washington University Law School and lectures regularly on behalf of the Federalist Society, The Fund for American Studies, and other educational and professional groups. Before entering private practice, Shapiro clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit, while living in Mississippi and traveling around the Deep South. He holds an A.B. from Princeton University, an M.Sc. from the London School of Economics, and a J.D. from the University of Chicago Law School (where he became a Tony Patiño Fellow). Shapiro is a native speaker of English and Russian, is fluent in Spanish and French, and is proficient in Italian and Portuguese.

The conventional wisdom is that the Court took Perry because it knew it would be striking down DOMA’s Section 3 and wanted to balance that with a ruling going the other way. That split is certainly possible, even likely, but the devil will be in the details. That is, however the Court rules, the issue of whether marriage is a fundamental right that can’t be denied on the basis of sexual orientation may not be reached in either case.

In Windsor, I could see an opinion stating that marriage is an issue that our federal system leaves to the states and the federal government has to respect each state’s definition of it in granting benefits based on that status. That would mean that federal benefits would operate differently in different states, but so be it; gay married couples would have an incentive to live in the growing number of states that recognize their relationships. I could see most if not all of the Court joining such an opinion, even if some of the liberals would get there for different reasons.

In Perry, I could see the Court finding that the Prop 8 proponents lack standing, elaborating on another ballot-proposition case, Arizonans for Official English v. Arizona, which would mean that gay marriage is back in California but not anywhere else. Or the Court could find no valid justification for giving gay couples all the incidents of marriage but withholding that word, which would affect not just California but seven other states that have civil unions that constitute marriage in all but name. (Such a ruling would have the perverse effect of discouraging states from granting “everything but marriage.”) Finally, and less likely in my view, the Court could agree with the Ninth Circuit that Romer controls here, which again would limit the practical effects to California.

And of course, the Court could go the “whole hog,” finding in both cases — in what would almost certainly be stark 5-4 opinions written by Justice Kennedy — that states cannot deny gay couples marriage licenses.

That’s certainly my view — I’d prefer that governments be out of the marriage business altogether but if they’re in it they have to make it available to everyone — though I recognize that such a ruling would create a political maelstrom that the Court may want to avoid.

Happily, unlike the atmosphere surrounding Roe v. Wade, popular opinion on gay marriage is quickly trending in one direction, such that whatever the Court does now — even as its rulings have very real consequences for very real people — isn’t likely to matter in the long run.

For example, a Pew Research Poll taken at the end of October showed that 49% of Americans favored same-sex marriage (with 40% opposed), versus 37% in 2009 and 33% in 2003. Moreover, support among seniors (over age 67) has grown from 23% to 33% since 2009; among baby boomers (ages 48 to 66) from 32% to 41%; among Generation X (ages 32 to 47) from 41% to 51%; and among millennials (ages 18 to 31) from 51% to 64%. George Will was right when he recently said that opposition to gay marriage was “literally dying out.”