As the Prospect's Gabriel Arana correctly noted yesterday, the litigation challenging the constitutionality of Proposition 8—the voter referendum that banned same-sex marriage in California—has become the high-stakes battle it was originally intended to be. The Supreme Court is almost certain to hear the case, which means either the biggest progressive legal victory in many years or a terrible precedent like Bowers v. Hardwick, which upheld a Georgia ban on sodomy in 1986. Ian Millhiser adds a couple of more important points. First, although the bad guys won, the decision to allow Prop. 8 supporters to defend the constitutionality of the bill was correct. Contrary to the claim of some conservatives that it was somehow tyrannical for the Obama administration to refuse to defend the Defense of Marriage Act in the courts, or for California Governor Arnold Schwarzenegger to refuse to defend Prop. 8, there's nothing wrong with an administration signalling it doesn't support a law by refusing to defend it in court. But it was nonetheless right for the California Supreme Court to rule that supporters of Prop. 8 have the right to defend the (awful) law. Second, I agree with Millhiser that there is a very real chance that Justice Anthony Kennedy will vote to rule bans on same-sex marriage unconstitutional. I'm not terribly optimistic, but he does have a good track record on gay- and lesbian-rights issues, and one could argue that he won't want his legacy to include a 21st-century Bowers decision while public opinion is trending the other way.
There is one point where I believe Arana is too pessimistic. Comparing a potential backlash if marriage rights are recognized at the Supreme Court with Roe v. Wade is incorrect: The idea that the Roe case created a unique backlash or represented the courts racing ahead of pubic opinion, is a myth. If you don't want to take my research for it, read this fantastic new paper from Linda Greenhouse and Reva Siegel. Anti-choice forces were already strongly mobilized prior to Roe, and Roe and the legal pre-viability abortions it protected were popular in 1973, just as they are today—indeed, they're even more popular than same-sex marriage is now. While abortion was illegal in many or most circumstances in 46 states in 1973, this reflects the fact that it's very difficult to repeal existing legislation (especially when it's not enforced against affluent individuals); it did not reflect public support for abortion bans in most states.
Of course, some people would be strongly opposed to a decision striking down Prop. 8, just as some people strongly opposed Roe. But some groups and individuals will inevitably oppose social change no matter what political institution enacts it. The only way to minimize backlash is to lose. Expansions of fundamental rights to previously excluded groups is never painless, but opposition is no reason not to move forward. The idea that avoiding the courts will somehow mollify opponents is silly, as the backlash against same-sex marriage in Maine proved definitively. A decision striking down Prop. 8 would be consistent with the text and purpose of the 14th Amendment and in addition, would almost certainly be supported by a majority of the public—and that's more than good enough.
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