Later in Roe v. Wade, there were signs that the states were already peacefully resolving the issue. Thirteen states had passed laws permitting abortion in the prior 10 years and a number of court decisions had ruled other prohibitions invalid or ineffective. The court’s decision, however, ignited the abortion wars that have been a staple of our time. An enormous amount of constitutional research suggests that Roe v. Wade may have hurt the cause of reproductive freedom by forcing the issue onto the country before Americans were ready. (There is also persuasive research to suggest otherwise, but this has become something of a truism when talking about the court and social change.)
Thus the question is a tactical one, not a constitutional one: Is the timing right to move the debate from the state to the federal battlefield? Are we all ready for Brown or detonating Roe? With marriage equality there is no consensus position. Currently states span the spectrum from constitutional bans to full marriage rights with plenty of “civil unions” and “domestic partnerships” occupying the middle. There are arguments that the trend favors marriage equality (opinion polls and the bulk of the recent movement among states have been in favor of marriage equality), but you can’t just ignore 30 states with same-sex marriage bans.
There are more important practical distinctions with Brown and Roe, however, than just approximating the head count of the state laws. And here it’s important to distinguish arguments about states rights and civil rights. Part of the problem the court experienced with Brown and Roe was that they were messy. Brown was almost too messy to implement and Roe was pretty much too messy to write. In its original Brown decision, the court didn’t even try to figure out how to desegregate the schools, which ultimately involved a complicated system of busing and regulation. The Roe case, meanwhile, required a difficult parsing of stages of pregnancy and hinged on a vague standard of viability that changed with advances in medicine. The court produced an opinion that looked too much like legislation and not a judicial decision. Both of these problems opened the court up to criticisms that it was activist, micro-managing, and anti-democratic.
That is not the case with marriage equality. A federal constitutional opinion would be easy to write and easy to implement. Judge Vaughn Walker already wrote it in his decision about the Prop 8 ballot initiative. There is a right to marry the person you love. Americans cannot be discriminated against simply because of their sexual preference. Justice Anthony Kennedy could go to town with the “poetry of the law.” It wouldn’t be messy; it would be beautiful.
You wanna know what is messy? What’s messy is what we have now—an oddball collection of marriage laws, civil unions, and same-sex bans that stop and start at state lines. This is simply unworkable in a country where we all have the right to travel (another one of those “fundamental rights”) and there’s no way to ask people to check their marriages at the border. Add to the mix that nobody has any idea whether the Defense of Marriage Act can overrule the Full Faith and Credit Clause by telling states that don’t recognize same-sex marriages that they can ignore unions from states that do. We have interstate child custody disputes that are Solomonic in scope. And our schizophrenic tax codes treat the same couple as married on one form and not married on the next. Social Security, Medicaid, health care directives, estate planning, and immigration all hinge on marital status, which in turn hinges on the whim of the voters. The courts are just now wading into that morass and we won’t lie, it’s ugly out there.
The current system is unsustainable. Just as our country couldn’t go on with a mix of free states and slave states, we cannot continue with this jumble of equal marriage states and discriminatory states. Recognizing a federal constitutional right is the only, and the best, method to put this issue to rest.
Advocates (perhaps including the president) will say that the timing is wrong. Gay-rights supporters learned all too well with Bowers v. Hardwick that an ill-timed, unfavorable decision can set back their cause by decades. But eventually we do reach a tipping point where, as a country, we need to address this as the federal civil rights issue it truly is. Or more appropriately, we need to acknowledge that basic equality is not subject to popular vote, even when majorities would like it to be. President Obama’s announcement, we believe, knocked our country over that tipping point, but it needs to go further. The court has been clear that we can go further.
It’s time to fight this battle where it belongs, which is on the federal stage. It’s time to embrace the language of constitutional justice. It’s time to say what is at stake here—true equality, full citizenship for everyone, basic human dignity and, yes, a fundamental right. The state-by-state rhetoric gives too much credence to the argument that the states have an option to discriminate, sometimes, so long as enough of their citizens cast a vote. They don’t. The Constitution forbids it.