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Marriage bans violate the law as segregation did

The same-sex marriage cases, which were heard by the Supreme Court this week, may well rank among the most important constitutional disputes in American history. The best analogy is Brown v. Board of Education, the iconic 1954 decision in which the Supreme Court struck down school segregation. The parallel is very close, and it clarifies what the same-sex marriage cases are really about.

Almost everyone now celebrates Brown as self-evidently correct. But beware of hindsight. It obscures the intense disagreements that preceded that decision, and the firestorms that followed it. At the time, eminently sensible people insisted that the court had overreached, not least because racial segregation was entrenched in many states, and because it was not at all obvious that the Constitution stood in its way.

The most powerful defense of the court’s ruling came from the great Yale law professor Charles Black. He took aim at the claim, widespread in the 1950s, that segregation was not a form of invidious discrimination: “If a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is then solemnly propounded whether such a race is being treated ‘equally,’ I think we ought to exercise one of the sovereign prerogatives of philosophers — that of laughter.”

Black argued that, “after we get our laughter under control,” the only remaining question is whether segregation fit his description. On that question, he confessed “a tendency to start laughing all over again.” A Southerner, Black was raised under the system of segregation, and he said “it never occurred to anyone, white or colored, to question its meaning.”

Black did not doubt “the good faith of those who assert that segregation represents no more than an attempt to furnish a wholesome opportunity for parallel development of the races.” But he insisted that a realistic appraisal of segregation, in its context, could lead to only one conclusion: that the court’s judgments were “as right and true as any that ever was uttered.”

Black’s most important claim was that, under segregation, a race of people was confined by a system created and maintained “for the very purpose of keeping it in an inferior station.” Now, it can hardly be said that the institution of marriage was created or maintained in order to keep gays and lesbians in an inferior position. But why has that defining institution been limited to opposite-sex couples? And why, exactly, have a number of states particularly insisted on that limitation in recent years, when same-sex couples have been seeking access to it?

Black believed the Constitution’s equal protection clause prohibits governments from creating any kind of racial caste system — that it prohibits states from turning a group of human beings, defined by skin color, into second-class citizens. As the law has developed, the Supreme Court has understood the equal protection clause to embody a broader kind of anti-caste principle, one that condemns sex discrimination and, at least some of the time, discrimination on the basis of sexual orientation.

Here is the crucial point: Among the many practices that have long subjected gays and lesbians to second-class citizenship, the restriction of marriage to opposite-sex couples may well be the most important.

To be sure, it’s not unreasonable to object that, if the court invalidates that restriction this year, it will be acting prematurely. In the midst of sharp social divisions, the court should ordinarily stay its hand — or rule humbly and narrowly rather than broadly. Most of the time, it should adopt a posture of deference to other branches of government, and should decline to disturb longstanding practices in the name of an abstract principle. But on very rare occasions — once in a generation is about right — the principle has sufficient force, and bears with sufficient clarity on the problem at hand, to warrant an unusually strong ruling.

Brown was one such occasion. We are in the midst of another. If the court strikes down prohibitions on same-sex marriages, its judgments may not be “as right and true as any that ever was uttered” — but they will be right and true nonetheless.

Cass R. Sunstein, a Bloomberg View columnist, is director of the Harvard Law School’s program on behavioral economics and public policy.

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