Wisconsin, Oregon and Pennsylvania have become the most recent states to strike down their gay marriage bans. In many jurisdictions throughout the country progress on gay rights and gay marriage is occurring rapidly, largely because of the judiciary. Congress and many other state legislatures appear content to sit back and watch from the sidelines. Although a number of state assemblies have responded with marriage equality acts (Illinois, Hawaii, and New York, to name a few), it is the judiciary that is currently driving constitutional change at this point.
Judicial striking of a ban, however, does not necessarily provide the final word on such matters. States currently challenging such rulings (Texas, Idaho, Oklahoma, Arkansas, Virginia, Michigan and Utah) often leave newly wed couples in limbo about their legal future. Further, many court watchers remain concerned that the language judges are using, including Justice Kennedy’s language in Windsor, is not sweeping enough in terms of equality.
Some judges have gone out of their way to disparage the gay marriage laws being struck down. In Oregon, Judge Michael McShane stated that, “Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest.” In Pennsylvania, Judge John Jones III noted, “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.” These are powerful words denouncing state marriage bans, and they do not place legislators in a particularly favorable light. What is more…they are perfectly valid statements.
As bans continue to fall, legislatures should be wary of allowing the judiciary to be perceived as the foremost branch expanding gay rights. Perceptions regarding the judicial-first protection of marriage rights are especially important for Congress, who is in constant conflict with the federal courts over the legality (and constitutionality) of their legislation. If members are perceived by the public as apathetic to a popular and significant constitutional debate, this only enhances judicial legitimacy.
So now that there appear to be favorable conditions for marriage equality, what are Congress and other state legislatures waiting for? The lack of legislative initiative may just be an extended form of what Harvard Law Professor Mark Tushnet calls “judicial overhang.” This occurs when legislatures bow to the judiciary concerning constitutional issues, disregarding the ways they could affect such outcomes. Essentially, the lawmaking bodies may not properly examine constitutional issues while bills are traveling through the legislative process, or may completely defer to the judiciary after passage, thinking “our job is done; now the judiciary can rule on constitutionality.” If legislatures around the country are thinking this way, it is a serious mistake.
For one, judicial intervention in gay marriage has not provided much certainty. Even the Windsor ruling was not the blanket recognition of equal rights advocates hoped for. Thus, legislatures, especially the U.S. Congress, should seize this opportunity, and provide certainty to couples by amending their statutes and constitutions to formally allow for same-sex marriage. This would be bold and resolute step, and would reassert legislative competence over a constitutional body of law only traveling in one direction: towards equality. Additionally, taking statutory or constitutional steps would be a strong reminder that legislatures still possess significant constitutional authority, and they are willing to assert such authority in the face of judicial hesitation.
Jones, PhD, is a postdoctoral research fellow at the Institutum Iurisprudentiae, Academia Sinica.