The Good News for Gay Rights

As I noted in this virtual space last year, many pundits -- some of them at least nominal supporters of gay marriage -- had argued that the decision of the Massachusetts Supreme Judicial Court to legalize same-sex marriage in 2003 (in the Goodridge v. Public Health Services case) actually spelled disaster for supporters of equality for gay and lesbian Americans, given the backlash it would inevitably spark as a clear-cut example of judicial overreach. These arguments became particularly pronounced after George Bush won a narrow re-election victory in 2004 while upwards of a dozen initiatives denying same-sex marriage benefits passed in the states.

There was always less to this sequence of events than met the eye. None of these initiatives actually rolled back existing gay marriage benefits, and most of them did not roll back civil union benefits. Nor were most of the states where these initiatives passed likely to change the status quo in a progressive direction anytime soon. And claims that gay marriage was a decisive factor in the 2004 elections have not held up well to close empirical scrutiny. Still, they lent the contrarian take on Goodridge some superficial plausibility.

But some funny things have happened in the wake of the progressive "loss" in Goodridge. A few states have provided civil union benefits to same-sex couples without provoking a discernible backlash. (You may remember that many of the usual suspects predicted dire consequences for the Democrats' 2006 electoral showing in the wake of the New Jersey court's requiring civil union benefits; you may also have noticed hearing little of those predictions since.) And on June 14, something even more noteworthy occurred. In Massachusetts itself -- the state where, presumably, the backlash against "undemocratic" courts "usurping" the will of the people should be strongest -- attempts to pass a constitutional amendment overruling Goodrige failed by an overwhelming 151-45 vote in the state assembly. Same-sex couples will be granted marriage rights in Massachusetts for at least the next five years, and almost certainly permanently.

This is excellent news in itself. And it further discredits the countermobilization myth beloved by so many moderate pundits -- the notion that judicial interventions into contested social issues inevitably anger the public and create a bigger backlash than what would be sparked by legislative action. This claim has always been both theoretically dubious and empirically under-supported. And in addition to the recent gay marriage-related cases here, our neighbor to the north has provided further demonstration of the problems with the idea that victories won in the courts are inevitably Pyrrhic.

As the culmination of a successful litigation campaign, the Canadian Supreme Court made clear that the federal government would have to grant benefits to same-sex couples in 2004. Again, if the claims that using litigation as a tool in the struggle for gay and lesbian equality is counterproductive were correct, we would expect a massive backlash. Instead, after a desultory, token attempt to roll back gay marriage legislation (which ended with several of his own cabinet members voting against the revocation of rights), Conservative Prime Minister Stephen Harper declared that "I don't see reopening this question in the future." Such predictions, in other words, have fared no better elsewhere than they have domestically.

Moreover, demands for a popular referendum to "legitimize" same-sex marriage in Massachusetts demonstrate the extent to which attacks on the courts are often an opportunistic shell game, with procedural claims masking substantive or political objections. (Recall Arnold Schwarzenegger vetoing gay marriage legislation on the grounds that … the issue should be settled by the courts.) An instructive example of the procedural argument's emptiness is Benjamin Wittes's "liberal case for Massachusetts's anti-gay marriage amendment," from January of this year. A ballot initiative that would overturn same-sex marriage rights should be allowed to proceed in 2008, Wittes argued (despite his own personal support for same-sex marriage), "out of deference to the right of the people to govern themselves." But what, exactly, is the underlying democratic theory here? Virtually nobody (including, presumably, Wittes) believes that self-government requires direct votes on every issue, and in any case our democracy is a representative one. Moreover, any democratic theory that puts any weight at all on attenuating social domination would compel the conclusion that decisions about whether to exclude unpopular minorities from fundamental rights and privileges are particularly unsuited to decision via referendum. (Surely Wittes would not have left the decision about whether to desegregate up to referenda in the southern states rather than Congress and the Supreme Court. )

Many of the same people who rail against "activist courts" granting same-sex marriage rights attack courts for upholding exercises of eminent domain or affirmation action policies enacted by electorally accountable officials; political activists and pundits who consistently adhere to principles of "judicial restraint" are about as common as playoff appearances by the Tampa Bay Devil Rays. Groups upset by judicial decisions favorable to gay rights are almost always upset no matter which institution resolves the issues.

Despite the attempts of contrarian pundits to muddy the waters, what happened in Massachusetts is simple, and a straightforward win for equality and justice. Under American constitutionalism, for better or worse, the judiciary scrutinizes legislative enactments to ensure their compliance with state and/or federal constitutions. The Massachusetts Supreme Judicial Court reached a decision that did not contradict the text or purpose of the relevant provisions of the state constitution, and as far as I know nobody has argued that the decision was inconsistent with principles previously expressed by the Court's majority. While contestable, in other words, the court's holding was hardly an illegitimate "usurpation" of democratic prerogatives. Since the court's decision, same-sex marriage rights have grown more popular in the state, and supporters of equality have fared better at the ballot box than opponents. Less than five years later, opponents of same-sex marriage were unable to scrounge up even the bare 25 percent of the vote necessary to permit a vote on an amendment to go forward, and polls suggested that the referendum would lose in any case.

Nothing about this story is surprising; in the American separation-of-powers system, it is often courts that respond first to divisive social issues. The only losers in Goodridge are the obvious ones: reactionaries fighting an ultimately futile battle against the recognition of the basic rights of gay and lesbian Americans.

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