No Hate, Prop 8: The Morning After

Logan Penza at The Moderate Voice argues that because same-sex marriage continues to have a significant majority of Americans against it, that Judge Vaughn's decision will only end up fueling that opposition into increasingly more radical approaches to end it, namely a "Roe v Wade" style approach where state legislatures doing everything they can to limit gay rights or to make exercising them so onerous that they are nearly impossible to engender, or even a Constitutional Amendment banning same-sex marriage completely.

Even if the Supreme Court does uphold the law, the result could even then not be final.  The reason the Republican Party has exploited the gay marriage issue in recent elections is because polling consistently indicates clear majorities in most states against it.  (And although civil unions result in a much more complex set of voter preferences, the judge’s decision throws that compromise option out.)  It is highly questionable whether the backlash against a Supreme Court affirmation would result in a successful constitutional amendment permanently enshrining anti-gay prejudice, but you can be sure it would be a long and hard fight.  This is the problem with using court decisions as a replacement for the hard work of education and persuasion in making sweeping social changes.

Lest anyone should misunderstand, let me note that I personally support marriage rights for gay couples.  I think court decisions are a very bad way to achieve that goal, for the reasons discussed above as well as because court decisions tend to lengthen political conflicts rather than resolve them.  It is worth remembering that in 1973 there was a clear trend among the states in favor of abortion rights.  The main accomplishment of Roe may have been to make abortion formally legal, but the decades-long firestorm of controversy has made actual exercise of those rights difficult in many areas of the country.  Using the courts is a way to an emotionally satisfying quick “win” on issues where the legal elite runs ahead of broader social attitudes, but that emotional rush often leads to a big crash in the longer term.  Temporary success can lead to long-term failure that is even more firmly entrenched than it was before.

I also don’t think that every desirable social policy enjoys the status of constitutional right.

But the game is definitely on and the result will be one of the most significant Supreme Court decisions in the last 50 years.

Penza is correct here.  31 states have held elections on referendums or state constitutional amendments to ban same sex marriages and they went 31 for 31.  38 such election victories would be needed to ratify a Constitutional Amendment that passed two-thirds of the House and Senate.  It's certainly within the realm of possibility and both sides of this legal fight know it.

And while Penza does have a very valid point, namely that the battle over gay rights in this country has now entered a new and much more high-stakes stage, and that the battle is far from over, the reality is that there are times where the judicial leading the way on social justice protecting the rights of a unpopular minority from the tyranny of the majority is absolutely necessary, especially when the legislative and executive will not act.  Clearly this is one of those times.

Still, Penza's warning resonates all the more powerfully now, given the fanatical fundamentalist motivation of the opponents of Prop 8 and the Republican plan to rewrite the Constitution, and not just on gay marriage either.

As I said last night, the fundamental argument here is whether or not you believe the goal of American democracy is to enshrine the rights of the popular, or to extend rights to all Americans.  We eventually to get around to the right choice on that as a people, but the battle is always long, hard, and bloody.