Ginsburg’s question presupposes an inaccurate (to put it mildly) narrative about the development of marriage law.
It now often said that social movements help generate modern constitutional law. Sometimes the claim is made in defense of living constitutionalism, because, according to many scholars, the influence of social movements shows that living constitutionalism has democratic roots and does not consist of rights simply minted by judges. While it is certainly true that social movements play an important role in living constitutionalism, they do not erase its democratic deficit, let alone assure that new constitutional norms reflect the consensus that the amendment process would provide. One reason for the continuing deficit is that justices write opinions to aid some movements and not others.
A case in point is the movement for same-sex marriage. Lawrence v. Texas was a substantial impetus to that movement. I have sharply criticized the opinion as matter of legal craft, even if I liked the policy result. But the opinion’s studied ambiguity actually made it more valuable to the same sex-marriage movement. Under Lawrence, the basis for the ruling that provided constitutional protection to sodomy was not clear. For instance, it could be that the right to engage in such conduct was deemed fundamental. Alternatively, prohibiting sodomy could be seen to fail the rational basis test, because traditional moral views were no longer a legitimate basis for such statutes. The opinion expressly did not consider the constitutionality of same-sex marriage, but it gave no reason to think that prohibitions on same-sex marriage were constitutional.
Lawrence energized the movement for same-sex marriage for two reasons. First, its very lack of analytic rigor signaled that a majority on Court was sentimentally on the movement’s side, and individuals and lawyers like to be part of a success. Second, the Court was suggesting that, at least as constitutional matter, there was no difference between same-sex and heterosexual conduct. While one could describe this claim as legal and not moral, the Court’s pronouncements have often been taken to have a moral valence, particularly by a public that is not always schooled in the difference between law and morality. Thus, the Court’s influence moved people in the direction of same-sex marriage even before that issue was seriously litigated.
The Court’s more recent decision in United States v. Windsor was similarly helpful. Again the decision did not itself legalize same-sex marriage in any state. And again, Justice Kennedy’s opinion was not fully coherent: it was not even entirely clear whether the decision rested on federalism or rights concerns. And only the latter reading provides any constitutional foundation for same-sex marriage. But the Court again cast doubt on traditional moral concerns, even going so far as to argue that the Defense of Marriage Act reflected animus toward homosexuals. This aspect of the opinion was designed to increase the support for same-sex marriage and indeed make opposition to same-sex marriage itself appear bigoted. Fear of being labelled bigoted is likely part of the reason why lower court judges have almost universally read an analytically ambiguous opinion to provide for a right to same-sex marriage. The overwhelming one-sided nature of these decisions now gives the Court momentum and political cover to render a decision in favor of same-sex marriage. While social movements influence the Court, the Court affects and sometimes consciously chooses to affect the course of social movements.
Thus, the undoubted importance of social movements does not show that living constitutionalism is a republican rather than a mixed regime. Like aristocrats of old, the justices sometimes choose those in the populace they would like to help. To be sure, they cannot energize any movement they choose and the movement for same-sex marriage has grown for many reasons. Living constitutionalism reflects a mixed regime, not an aristocratic oligarchy.