viewpoints of the power of the court, The Dynamic and the Constrained Court. In the Dynamic Court, the court is viewed as the main arbiter of social change, were social reform can occur without the delay of other political institutions. For proponents of the Dynamic Court view, the landmark Supreme Court cases such as, Brown v. Board of Education and Roe v. Wade are viewed as some as some of the strongest pieces of evidence that the court is an exceptional tool for activists. But the inherent problem with Dynamic Court viewpoint is that a ruling does not necessarily lead to change.
Though Brown v. Board ruled against school segregation, segregation persisted until the involvement of the federal government in the 1960s. Though Roe v. Wade ruled that a woman has a right to receive an abortion, a variety of state and federal laws have served as barriers for the procedure. In the Constrained Court viewpoint however, the courts are seen an inherently weak. Due to the inherent to the structure of the American political system, the court cannot create social change because it is constrained by its limited nature of constitutional rights, the lack of judicial independence, and the lack of powers of implementation (Rosenberg, pg. 5).
This is not to say that the court does not have any other weaknesses that render its power ineffective, such as the misinterpretation of court rulings and biases held by the court. In spite of this, Rosenberg does clarify that the court can still be an effective producer of social change if certain conditions can be met such as a legal precedent for change, support from the legislative and executive branch for the social change, the presence of support from the citizenry, and high benefits and/or low costs of for court compliance (pg. 36).
These conditions are no more evident than in evolution of same sex marriage within the court. For the past several decades, there has been a steady increase in the amount of cases brought forth by a variety of activists and plaintiffs seeking to implement the social reforms that would allow the legal right for same sex couples to enter marriage and obtain legal recognition. Though traditionally the courts of the United States have abided by the conditions of the constrained court, the court was being quite instrumental in the advancement of marriage for same sex couples.
With the exception of the Supreme court case Bowers v. Hardwick in 1986, there had been a general trend of the courts to serve as important implementers of social change for same sex marriage. Yet, the courts have not been able to figuratively strike the mortal blow to issue. Of the accomplishments won by activists in the court, many had been rulings that simply overturned laws forbidding same sex marriage. In order for there to be true social change, the courts would need rule that not only are same sex marriages legal, they must be held to the same standard of equality as heterosexual marriages.
Though activists continue to hope that one day full marriage equality can become a reality, it is important to understand the previous cases that been brought forth in the courts history. Though many may find it strange, litigation and cases brought forth by marriage equality activists did not originate from any specific case dealing with same sex marriage. The origin was instead the supreme court case Griswold v. Connecticut. Griswold v. Connecticut was originally an appeal brought forth from Estelle Griswold and Dr. Buxton who, under a Connecticut statute that prohibited the use of drugs and medical instruments to prevent pregnancy.
In a 7-2. The Supreme Court ruled that the Connecticut statue was unconstitutional because, although “The Association of people is not mentioned in the Constitution nor in the Bill of Rights” (Rossum and Tarr, pg. 759), the penumbra of privacy could be constructed because several amendments, such as the fifth, deal with some aspect of privacy. Additionally, the statute was in infringement of the fourteenth amendment, I particular the due process clause. Though Griswold v Connecticut did set a precedence for privacy, it was not used in the one of the first high profile cases involving same sex rights, Bowers v. Hardwick (1986).
Though one of the arguments of the plaintiff in the Bowers v. Hardwick (1986) was that a Georgia statute violated his rights because “his homosexual activity is a private and intimate association”, Justice White reasoned that due to a historical presence of anti sodomy laws in the United States, current laws should not be invalidated because they have a basis in state morality. Though Bowers v. Hardwick (1986) dealt quite a blow for same sex rights, it was not the end of the fight but instead signaled a reversal of fortunes.
In 1996, the Supreme Court took Romer v. Evans, a case dealing with the passage of Amendment 2 by a Colorado referendum that sought to prohibit any state or local jurisdiction form providing protections for Igbt individuals. In a 6-3 ruling, the Supreme Court affirmed the decision of the Colorado Supreme Court with Justice Kennedy giving the opinion of the court that Amendment 2 was not “a rational relationship to legitimate state interests” and thus violated the Equal Protection Clause of the 14th Amendment of the constitution (Romer v. Evans).
7 years later same sex activists were on course to be provided with another opportunity to challenge the legality of not only a Texas antisodomy law but, anti-sodomy laws nationwide with Lawrence v. Texas. Though sodomy laws were rarely enforced in the states that contained, activists still sought to render them null for “their very existence legitimized a culture of homophobia” (Lithwick). Eventually, same sex activists gained a victory that had once eluded them, when the court sided with the plaintiffs.
Citing the right to privacy from Griswold v. Connecticut and the Equal Protection Clause from Romer v. Evans, the Supreme Court ruled that the Texas statute criminalizing sodomy served as an “invitation to subiect homosexual persons to discrimination” (Rossum and Tarr, pg. 798). As result Texas and 13 other state anti-sodomy laws were invalidated. After resolving several prominent cases that sought to invalidate laws and statues that criminalize same sex behavior or prohibit legal protections for the Igbt community, cases after Lawrence were different.
Since 2011, there had been a change on the front of same-sex marriage. With each passing case, there had been a growing presence of the conditions required for to court to bypass its constraints. Previously, court cases simply allowed the court legal precedent to enact social change. Yet for the first time in the nation’s history, there was a majority of the populace that supported legal same sex marriage with 46% of the population in support and 45% in opposition (Mitchell). Since then support has only grown and opposition has only diminished.
At this point same-sex activists sought to invalidate state laws that banned same-sex marriage, beginning with Perry v. Brown. Perry is often considered quite strange with regards to other cases. The case had come from the state of California who, at one point, legally allowed same-sex couples the opportunity to legally marry within its borders, yet the right was received with the passage of Proposition 8. Additionally, the state of California refused to defend the proposition, leaving the proponents of Proposition 8 as the defendants.
Due to the court never upholding “the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to”, the defendants were denied Article III standing by a 5-4 ruling and same sex marriage resumed in the state of California (Perry v. Brown). On the same day, the Supreme Court reached a decision with United States v. Windsor. United States would come to signify the first case that directly challenge a federal statue, in particular challenging aspects of the Defense of Marriage Act (DOMA).
In a 5-4 decision, the Supreme Court invalidated section 3 of DOMA that, due to defining marriage within a heterosexual context, served as a “deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution”. (United States v. Windsor). Two years, Obergefell v. Hodges would be brought to the Supreme Court after disagreements of the legality of same-sex marriage bans in the circuit courts, with the Fourth, Seventh, Ninth, and Tenth Circuits ruling the bans unconstitutional and the Sixth Circuit ruling the bans constitutional.
With another 5-4 decision of the Supreme Court, the Sixth Circuits decision was to be reversed, for samesex couples simply “ask for equal dignity in the eyes of the law” Obergefell v. Hodges. Same-sex marriage was now legal across the entire United States. Though the court has been an instrumental tool for the issue of same-sex marriage, the court has not been successful in implementing total social reform. Though same-sex marriage is now legal, the court has yet to address other issues that would enable same-sex couples equal rights to heterosexual ones. In the aftermath of Obergefell v.
Hodges, there has been a substantial push back from state government seeking to place barriers for full marriage equality. Specifically, there has been a rise of the use of religious beliefs from the opposition of same-sex equality. In March of 2017, the state of Alabama recently passed the Alabama House Bill 24. Officially known as the Alabama Child Placing Agency Act, child placing agencies would be protected from actions perpetrated by government entities if a refusal to provide service for certain individual conflicts with “the sincerely held religious beliefs of the agency” (AL HB24 | 2017 | Regular Session, pg. ).
Even if the individuals were to be a same-sex couple. Additionally, there have been incidents of states targeting spousal benefits for same-sex couples. Currently there is a current litigation case from state of Texas against the city of Houston in for issuing spousal employment benefits to same-sex couples. Though Jonathan Mitchell, the lawyer representing the opposition to the Houston policy, does concede that ability to enter marriage, adopt children, and placing ones name on a death certificate are fundamental rights, the receiving of spousal employment benefits are not one of them (Ura).
Though court has shown enacted social change in line with that of the dynamic court for the issue of same-sex marriage, there has always been dissonance of the court with regards to equality dating back to Plessy v. Ferguson. In this specific case, the court reached majority decision that allowed the use of race segregate accommodations provide they be equal. In the majority opinion, the court had justified its decision, stating that it was not within the power of legislation to “eradicate racial instincts or to abolish distinctions based on physical differences… Plessy v. Ferguson, 163 U. S. 537. There would not be inferiority if both races held the same civil and political rights. Yet the justification of separate but equal was as wrong then as it is now. Had the Supreme court taken a similar approach to the issue same-sex marriage, there might not have been a legal precedent to rule anti-sodomy laws unconstitutional had they applied equally to both same-sex and heterosexual individuals.
Perhaps there would have been a situation where same-sex plaintiffs challenging same-sex marriage bans might have lost their cases, resulting in no legal recognition in the worst of scenarios or civilunions in the best. Yet even in the best case, though it may give the appearance of equality, same-sex couples would not receive the same benefits that a heterosexual couple might had. But they would surely be legally recognized in the eyes of the law.
