JURIST Guest Columnist Amaury A. Reyes-Torres, of Iberoamerican University in the Dominican Republic, discusses the constitutional questions the US Supreme Court justices are facing when deciding same sex marriage cases …

The case for equal marriage is the case of Constitution, tradition and time. We witnessed during the oral arguments of Obergefell v. Hodges [PDF] before US Supreme Court (‘SCOTUS’) how interrelated these concepts can be. It came to our attention the different contentions made on how there is no single word in the Constitution about same sex marriage. Also, Chief Justice Roberts worried about how a decision by the court will affect further debates and how the pretensions of same sex couples may be changing the nature of the institution. We also heard Justice Kennedy expressing his doubts about how a decision by the court might affect as well an institution that is “millennial.”

These questions and doubts clearly express the issue of how time affects our understanding of the law. When is it the right time to read the law in one way or another? Are we ready for a change? Is it better for political branches to decide this or that? What is the role of the court in a deep and morally dividing issue?

Unlike many postwar contemporary constitutions, the US Constitution is written with few words but, like any other western constitution, it speaks with a lot of voices. Constitutions are subjected to the changing conditions of a given society: the society of today is not the society of tomorrow, no matter how much or how little time has passed. Given that the document is so short in its length and that many of its clauses do not provide a definitive answer on contentious issues, it is always a good time to remember the immortal words of Chief Justice Marshall in McCulloch v. Maryland: “[W]e must never forget that it is a Constitution we are expounding.”

I believe Justice Souter had this in mind in a particular dissent where he laid down his understanding of constitutional interpretation and its relationship with time and tradition. Sailing through the questions about when it is proper to hold a new claim under the substantive due process clause, Justice Souter believes that time has an effect on the opinion of society regarding particular topics. In his dissent in District Attorney’s Office for Third Judicial District v. Osborne he said that

“Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.”

As for the equal marriage case we should ask ourselves the following: is time, as a requirement for a judgment on substantive due process claim, a good argument for judicial restraint? No necessarily. Time is a key component to any reading of the Constitution, but there is no sacred formula to hold when enough time has passed or how developed is the conscience of the society on certain issues. Time is important but what happens during that time is important as well. The journey is worth as much as the destination when it comes to constitutional interpretation.

Of course, the public “needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional,” as Souter once said. However, a long period of time for the development of political ideas is no longer needed. Our sincere compromise in discussions and the manner in which we discuss the issues such as equal marriage shape our understandings on a topic without the need of a large period of time. Our views change so fast in so little time thanks to deliberation, self-reflection and how we use courts as a principled scenario to extend democratic discussions when the political branches fail.

The continuous development of our moral and political ideas due to deliberation shows that tradition per se cannot stop us from questioning the possible interpretations of constitutional provisions. By asking the proper questions we loose the ropes of history and tradition to push for a new understanding of the Constitution. As Kennedy once said: “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” (County of Sacramento v. Lewis).

The equal marriage cases are a good example of this. We can cite four momentums that in such a short time have led to a shift in the mind of the people in the discussion on equal marriage beyond “normal politics” (B. Ackerman) and tradition: 1) SCOTUS decision on Romer v. Evans, where it held that a state constitutional amendment violated the equal protection clause by discriminating against people due to their sexual orientation; 2) Lawrence v. Texas, when it overruled a precedent that upheld the constitutionality of a provision that criminalized sexual encounters between consenting adults; 2) Windsor v. US, where it struck down article 3 of the Defense of Marriage Act [PDF] (DOMA) for discriminating against same sex couples; 3) a large number of federal courts striking down bans on marriage for same sex couples, using a Windsor as the argument of choice; 4) the certiorari denial [PDF] by the court in a group of marriage cases post-Windsor that let stand decisions that held that the ban against same sex couples to get marry is unconstitutional; and 5) more recent polls reveal a significant increasing support for equal marriage.

These momentums, since 1996, had sparked a serious discussion on the rights of same sex couples under the Constitution. This discussion has been taking place in forms different from our traditional democratic mechanisms. The rise of social networks and digital journalism breaks with the centralized control of information and opinion, and the public benefits from this new paradigm. By discussions in TV, Twitter, Facebook, journalism or Op-Ed columns and other means, these momentums had been the force that had been shaping the discourse of political actors, private individuals and organizations towards equal marriage. All of these remind us that voting is not the only process by which we deliberate in a democracy: deliberation is something bigger than this.

That is why there is always a parallel discussion going on that sooner or later might have an epistemic impact in our continuous deliberation: we might change our views or reaffirm them. There is continuous deliberation going on and there are compelling indicators that show where most of the public stands on equal marriage. And more importantly, people are discussing this issue taking into account that there is a Constitution that leads the way to forge a society on certain principles: like it or not, people use the Constitution and its principles as a powerful argument.

Due to deliberation, there is a voice that the court needs to listen to that has a serious liberty claim under the due process clause. It is time to comply with the only tradition that must be kept in democratic societies and that is to read the Constitution as the blueprint for a community that seeks equality, freedom and dignity.

Whatever happens, it is clear that we are in the face of another constitutional moment (B. Ackerman). And that constitutional moment, without a doubt, will have a significant impact on everyone and on those countries in which the constitutional tradition is influenced by the US constitutionalism.

Amaury A. Reyes-Torres is a lecturer on Constitutional Law and Comparative Constitutional Law at Iberoamerican University (UNIBE), Dominican Republic. @amauryreyes

Suggested citation: Amaury A. Reyes-Torres, Equal Marriage, tradition and time: the power of public deliberation , JURIST – Forum, June. 3, 2015, http://jurist.org/dateline/2015/06/Amaury-Reyes-Torres-Equal-Marriage.php