What will result from the the Massachusetts Supreme Court ruling that gays have the right to marry -- a victory for tolerance, liberty and privacy, or an invitation to backlash?
It's too soon to tell, but in the expansion of rights and liberties, courts and political movements often interact in surprising ways. A court decision can lend legitimacy to minority assertion of rights and liberties, and embolden that movement. But if the decision is politically premature, it can invite complacency, conflict, or 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 upheld gay marriage, because the issue was not on the radar screen.
Yet, in a sense, all bold court decisions are politically premature. And, conversely, some social revolutions are beyond the reach of courts. The epic example is slavery. The Republic had been ducking the disgrace of slavery every since its founding, as had the federal courts. Ending slavery took a civil war, followed by three constitutional amendments.
The movement to end discrimination gained new strength during World War II, with black demands for fair employment opportunity, but it was given a mighty boost by the High Court's 9-0 Brown v. Board decision holding school segregation unconstitutional in 1954. The freedom rides, the marches, the voter registration efforts beginning in the late 1950s were energized by the courts. 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 U.S. Supreme Court, in Roe v. Wade in 1973, enunciated a constitutional right 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, anti-abortion organizing gained ground because the pro-choice movement prematurely relied on courts rather than persuading the court of public opinion.
However, sometimes courts leapfrog public opinion and produce durable gains. Before 1986, workplace sexual harassment was legal and not widely challenged. Then U.S. Supreme Court, responding to work by a 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 obvious. If your boss is hitting on you, how can that not be discrimination? In this case, "judge-made law" has changed behavior and has become as widely accepted as any political or legislative achievement.
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 U.S. 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 for some, to accept domestic partnership for same-sex unions. But marriage?
Here, one has to 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 who know is gay.
A second reason is a lot of tough and 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.
Many religious traditionalists, of course, object. But polls suggest the most notable division on the issue is by age. Younger people, who've grown up thinking of gays as people, are more accepting of full rights.
So, yes. legalizing gay marriage by a 4-3 court decision is 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. The Massachusetts court was right, and this advance will endure.
A different version of this article appeared in today's Boston Globe.
