Roe v. Wade looms over gay marriage cases before Supreme Court -
Published Tuesday, March 26, 2013 at 1:00 am / Updated at 1:36 am
Roe v. Wade looms over gay marriage cases before Supreme Court
Justices to hear two cases
>> California's same-sex marriage ban, which its voters passed as Proposition 8.
>> DOMA, or the Defense of Marriage Act, a 1996 federal law that defines marriage as the union of one man and one woman and therefore prevents married gays from collecting federal benefits otherwise available to wedded people.

WASHINGTON — When the U.S. Supreme Court hears a pair of same-sex-marriage cases today and Wednesday, it will be in the shadow of a 40-year-old decision the court made on another subject entirely: Roe v. Wade, the 1973 ruling that established a constitutional right to abortion.

Over the years judges, lawyers and scholars have drawn varying lessons from Roe. Those will be shaping the way the court thinks about its decision on same-sex marriage, expected by June.

One school of thought holds that Roe was needlessly rash, the opening shot of a long, bitter culture war that didn't have to happen.

“It's not that the judgment was wrong, but it moved too far, too fast,” said Justice Ruth Bader Ginsburg, a liberal champion of women's rights and the best-known advocate of this line of thought.

Legal briefs from opponents of same-sex marriage, including one signed by 17 states, are studded with references to Ginsburg and abortion. The lesson of Roe, they say, is that states should be allowed to work out delicate, profoundly divisive matters — such as abortion and same-sex marriage — for themselves.

What the court should have done in 1973, according to this line of reasoning: Strike down just the Texas abortion law involved and leave broader questions for another day.

The analogous approach now: Strike down just California's ban on same-sex marriage but leave alone the similar bans in about 40 other states, to be thrashed out one by one.

On the other hand, some say the Roe experience carries no such lesson.

Roe was a different case on a different subject in a different political and social context, said Theodore Boutrous, a lawyer for the two couples challenging California's same-sex marriage ban.

Roe, he said, was “a bolt out of the blue,” unlike the “exhaustive public discussion, debate and support, including by the president and other high-ranking government officials from both parties” that has been lavished on the issue of marriage.

“Roe was written in a way that allowed its critics to argue that the court was creating out of whole cloth a brand new constitutional right,” Boutrous said. “But recognition of the fundamental constitutional right to marry dates back over a century, and the Supreme Court has already paved the way for marriage equality by deciding two landmark decisions protecting gay citizens from discrimination.”

Thus during this week's arguments, both sides will be looking in the rear-view mirror. And seeing different pictures.

The justices in 1973 “thought they were resolving a contentious issue by taking it out of the political process but ended up perpetuating it,” said John Eastman, chairman of the National Organization for Marriage and a law professor at Chapman University.

“The lesson they should draw,” he said, “is that when you are moving beyond the clear command of the Constitution, you should be very hesitant about shutting down a political debate.”

Ginsburg, in a series of public remarks and law review articles, has said the broadness of Roe froze activity in state legislatures, created a venomous polarization of American society and damaged the authority of the court.

“The legislatures all over the United States were moving on this question” of abortion, Ginsburg said in a 2008 Princeton speech. “The law was in a state of flux.”

So “the Supreme Court's decision was a perfect rallying point for people who disagreed with the notion that it should be a woman's choice,” she said. “They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges.”

Ginsburg's view is widely accepted across the political spectrum, and it might counsel court caution at a time when same-sex marriage has now been made legal in nine states and, judging from polls, seems likely to make further gains around the nation.

“Intervening at this stage of a social reform movement would be somewhat analogous to Roe v. Wade, where the court essentially took the laws deregulating abortion in four states and turned them into a constitutional command for the other 46,” as Michael Klarman, a Harvard law professor, put it in a recent book, “From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage.”

Those making the counterargument see a different history.

“The Roe-centered-backlash narrative, it seems, is the trump card in many discussions of the marriage cases,” Linda Greenhouse, once a reporter covering the court and now a teacher at Yale Law School, writes in a new article with Reva Siegel, a Yale law professor.

“Before Roe,” they say in Discourse, an online legal journal, “despite broad popular support, liberalization of abortion law had all but come to a halt in the face of concerted opposition by a Catholic-led minority. It was, in other words, decidedly not the case that abortion reform was on an inevitable march forward if only the Supreme Court had stayed its hand.”

After Roe, they said, “political realignment better explains the timing and shape of political polarization around abortion than does a court-centered story of backlash.”

Siegel says recent lower-court decisions on same-sex marriage have played a valuable role.

“It is nearly two decades since courts in Hawaii, Massachusetts and other states began a national conversation about marriage,” she said in an interview. “There has been over the course of this long period a dramatic, revolutionary change in popular understanding of marriage equality. Courts can inspire resistance but also can teach.”

Klarman, the Harvard professor, said there is another big difference between then and now.

“For abortion opponents, abortion is murder, which means the intensity of their commitment to resisting Roe was considerable,” he said. “For the gay marriage opponent in, say, Mississippi, how will their lives change if the openly gay couple living down the street can now obtain a marriage license?”

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