Last March, during oral arguments on the constitutionality of the Defense of Marriage Act, Chief Justice John Roberts inquired into whether gays and lesbians were politically powerful. The Chief Justice asked, "You don't doubt that the lobby supporting the enactment of same-sex-marriage laws in different states is politically powerful, do you?" His question stemmed from a broader debate over whether, given the successes of the gay rights movement, gays and lesbians are too politically powerful to warrant heightened safeguards under the equal protection guarantees of the Fifth and Fourteenth Amendments.
This question has longstanding significance in American constitutional law. Rooted in a 1938 case, United States v. Carolene Products, the Supreme Court has developed a four-prong inquiry for whether discrimination against certain classes of people should be viewed by courts with greater skepticism. The fourth prong asks, "Is the class a minority or politically powerless?"
In the DOMA case, Windsor, the lower appellate court analyzed the Carolene factors and determined that heightened scrutiny should apply to gays and lesbians. Speaking to the political powerlessness prong, which is assessed in a broad historical context, Judge Jacobs wrote for the panel, "Homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public." That conclusion, however, takes a significantly different posture than Chief Justice Roberts' line of questioning, particularly when he said, "As far as I can tell, political figures are falling over themselves to endorse [the anti-DOMA] side of the case."
Many commentators on the Court have pondered if the justices will positively take note of the victories in Rhode Island, Delaware, and Minnesota as evidence of a shifting constitutional consensus that Americans believe that the fundamental freedom to marry (or not to marry) extends to loving, committed same-sex couples and their families. The Court will certainly sense its place in history and the shifting popular sentiment on same-sex couples' ability to marry. That is a good and wise thing.
But as a consequence of that, members of the Court could make the false assumption that the movement for the freedom to marry, and the gay rights movement generally, is sufficiently powerful that gays and lesbians do not need a more rigorous constitutional analysis applied to their claims of discrimination. In reaching such a conclusion, the Court would have to improperly ignore the longer history of sexual orientation discrimination. However, the justices need not look beyond Illinois-- as one of many recent examples-- to see that such an assumption and the Chief Justice's observation are incorrect even in 2013.
Last week, the Illinois House regretfully failed to vote on the marriage equality bill because it was short of the number of votes needed for passage. Illinois' painful experience is a reminder of the need for patient, yet tenacious, advocacy.
Like the experience in Maryland between 2011 and 2012, I am confident that the Illinois House of Representatives will do right and rise to its moral and constitutional duty to end the perpetuation of second-class citizenship for same-sex couples. In Maryland, the House of Delegates declined to vote on a marriage bill in 2011 for lack of sufficient support, but returned in 2012 to successfully join the right side of history.
That victory in Maryland was not easy. It took many months of dedicated advocacy and legislative maneuvering to win the day. Same-sex couples had to tell their stories to undecided legislators and even work for votes from delegates who were, by most accounts, an unlikely "yes." Legislative leadership had to refine language protecting religious liberty. Religious leaders and straight allies had to engage in meaningful dialogue with their elected officials. Robust public discussions on the difference between civil and religious marriage were had. Indeed, the Annapolis pathway to victory is a successful, albeit labor-intensive, model Illinois can replicate.
It is a matter of if and not when the freedom to marry will prevail in Illinois. However, this week Springfield reaffirmed that the country in which we live is a far cry from a place where politicians are "falling over themselves" to stand for same-sex couples' equality. The brutal reality remains that guaranteeing same-sex couples' freedom is a difficult business even in the states most naturally inclined to be hospitable to it. For our federal courts, the stinging, yet temporary, setback in Illinois should validate calls for more robust constitutional protections for the LGBT community.