Thinking about Gideon and Same-Sex Marriage

Fifty years later, we cannot forget about the monumental case of Gideon v. Wainwright, which established that the right to an attorney for the indigent accused is fundamental and must be provided by states. I remember learning about Gideon even before law school, and its story continues to reverberate with me. Anthony Lewis, who passed away this week, wrote a remarkable book called Gideon's Trumpet, which I recommend to any American interested in learning about law, our government, and the special place constitutional rights play in our daily lives. Unfortunately, the promises of Gideon have not been realized across the country, where poor criminal defendants in many states do not have adequate legal representation. It is our duty, even for lawyers not working in criminal law, to make sure that Gideon is not confined to the Supreme Court reports made fifty years ago.

Thinking about Gideon makes me ponder the same sex marriages being argued these two days. I see the parallels: both times, the Court is asked to recognize and extend rights guaranteed under the Due Process Clauses to individuals disfavored by mainstream society: the poor criminally accused or same sex couples. The law is quite clear on both: Gideon was a slam-dunk case under the Sixth and Fourteenth Amendments, and Perry and Windsor, with the procedural issues aside, are also clear-cut if we apply precedents that marriage is a fundamental right and the states are reserved the power to determine domestic relations. But the timing I feel is important and the two cases diverge. The time to decide Gideon was 1963, and not anytime later, whereas the time to declare a constitutional right to same-sex marriage has not yet arrived. The best course for the Court would be to strike down DOMA Section 3 under existing precedents, which does not require it to decide whether sexual orientation classifications deserve heightened scrutiny, and wait to tackle whether states must recognize same-sex marriage. The democratic process and public opinion should run its course, and I'm confident they will for the better.