Equality Marches On

By Kermit Roosevelt
Jun 26, 2015

There is ultimately nothing very surprising in the Supreme Court's marriage equality decision. We have seen this pattern before, first with race equality and the civil rights movement, and then with sex equality and the feminist movement. In each case, society initially accepted certain forms of discrimination as natural and justified. A social movement arose to challenge the discrimination, making its arguments in terms of equality, justice, and the constitution. Opponents invoked tradition; they claimed the social movement was seeking special rights. But the movement succeeded in its most important task: persuading the American people that its aspirations were not strange, different, and threatening, but rather the things that ordinary Americans took for granted. Public opinion changed, and what once seemed justified became invidious. And eventually the Supreme Court stepped in to ratify the success of the social movement.

There are some differences, of course, but this is the basic story of all three movements. It is the story of the growth of equality under our Constitution, the expansion of the set of people deemed worthy of equal concern and respect. It is sad and troubling that Chief Justice Roberts told the supporters of marriage equality that they could celebrate the outcome but should not celebrate the Constitution. The constitution, he said, had nothing to do with it.

Roberts was wrong about that, at least if he accepts the court's decisions about race and sex discrimination. His dissent invoked the now-reviled decision in Lochner v. New York, when the Supreme Court struck down a maximum hour law for bakers. If you think Obergefell is right, he said, you must also think Lochner is right. But Obergefell is not about economic liberty; it's about equality and civil rights. And if you think it is wrong, you must think Brown is wrong too.

Some other dissents suggested that possibility. Justice Thomas rejected the majority's concerns about the dignity of same-sex couples. The state can neither bestow nor remove dignity, he said. But the Supreme Court has said that before, most notably in Plessy v. Ferguson, when it upheld a Louisiana law segregating railroad cars. If blacks found that stigmatizing, the court said, it was only because they chose to place that construction on it.

Justice Scalia, for his part, argued that a practice allowed at the time a particular constitutional provision was ratified and continued thereafter cannot later be found to violate that provision. But of course this means that Brown was wrongly decided: school segregation accompanied the ratification of the Equal Protection clause and persisted for almost a hundred years afterwards. Scalia's dissent concludes with possibly the most alarming line we've seen in years, channeling not the ratifiers of the Fourteenth Amendment but someone more like George Wallace. The more decisions like this the court issues, he wrote, the closer we come to confronting our own impotence. That is a reference--and not a disapproving one--to the possibility of defiance of the supreme court's decisions.

Happily, history shows that such defiance fades. Brown met massive resistance at the time, but it is now unquestioned. One day--sooner than you might think--Obergefell will be too.