IS THE SUPREME Judicial Court's decision legalizing gay marriage a victory for tolerance and liberty? The answer is more complex than it may seem.
In the expansion of rights and liberties, courts and political movements often interact in surprising ways. A court decision can lend legitimacy to a movement for freedom and embolden that movement. But if the decision is premature, it can invite complacency and backlash.
Finley Peter Dunne's character Mr. Dooley said famously that the Supreme Court follows the election results. He meant that courts are creatures of their times. The Earl Warren court, liberal as it was, would not have found in favor of gay marriage, because the issue was not on the radar screen.
A tally of the role of courts, social movements, changing values, and legislative reforms shows diverse patterns. The epic example is slavery. The republic had been ducking the disgrace of slavery ever since its founding, but no court decision could have ended slavery. That took a civil war, followed by three constitutional amendments.
The movement to end discrimination gained new strength during World War II, with demands for fair employment opportunity, but it was given a mighty boost by the high court's 9-0 Brown v. Board of Education decision holding school segregation unconstitutional in 1954. The freedom rides, the marches, the voter registration efforts beginning in the late 1950s were energized by what the court did. The great civil rights acts of the 1960s completed that cycle.
Backlash ensued, but that wasn't the fault of the courts. Any dismantling of segregation and white privilege, from whatever quarter, would have produced some angry whites.
A closer question is the issue of abortion rights. When the US Supreme Court, in Roe v. Wade in 1973, enunciated a constitutional right to choose to abort a pregnancy (or not), the women's movement was just gaining steam. Some liberal constitutional scholars, such as Cass Sunstein of the University of Chicago, argue that the right to choose would have been better bolstered were it built on political organizing and public education rather than a court ruling. In this view, antiabortion organizing has gained ground because the prochoice movement prematurely relied on courts rather than public opinion.
However, sometimes courts leapfrogged public opinion and produced durable gains. Before 1986, workplace sexual harassment was legal and not widely challenged. The US Supreme Court, responding to theoretical work by law professor Catharine MacKinnon and others, held that sexual harassment violates the 1964 Civil Rights Act's ban on workplace discrimination. In retrospect, that holding seems palpably obvious. If your boss is hitting on you, how can that not be discrimination? In this case, "judge-made law" is as well entrenched in changed norms as any social movement's achievements or any legislative enactment.
An opposite case, however, is disability rights, where nearly all of the gains are the result of political organizing, public education, lobbying, and legislation. Courts have helped, but the movement came first.
Where, then, does this leave gay marriage? It's clear that the US Supreme Court was responding to changing norms earlier this year, when it overturned a 1986 ruling allowing state laws that punished sexual activity between consenting gay adults. By wide margins, public opinion believes that private sexual acts between adults are not the government's business. The broader heterosexual public also seems, a bit queasily in some cases, to accept domestic partnership laws for same-sex unions. But marriage?
Here, one has to pause and recall the gay struggle for tolerance over the past four decades. Why, after all, are more straights more tolerant of gays today? One reason is brave acts by individual lesbians and gays, coming out to parents, relatives, friends, co-workers, and employers. It's harder to be a bigot if someone you know is gay.
A second reason is a lot of tough, smart, and sometimes in-your-face organizing. A third reason is the HIV epidemic, and a surprising backlash of compassion. A fourth reason is that Hollywood has helped un-demonize gays in popular culture.
Polls suggest the main divisions on the issue of gay marriage are by age. Younger people, who've grown up thinking of gays as people, are more accepting of full rights.
Legalizing gay marriage by a 4-3 court decision is a little risky, but it is constructed on solid building blocks of education and organizing. The march of rights is full of targets of opportunity, teachable moments, and stretches. I think the court got it right.
Robert Kuttner's is co-editor of The American Prospect.
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