From my blog on the Huffington Post 3/29/13.
Now that oral arguments in the two gay marriage cases have concluded, the justices have many different options in both cases, limiting the reach of a potential pro-gay marriage opinion to one state (California), a handful of states, or legalizing gay marriage in all 50 states.
As law professor and Huffington Post contributor Geoffrey Stone has observed, “[t]he general consensus among Court-watchers…” is the Court will strike down Proposition 8 but not extend the right for same-sex couples to wed outside of California.
Few pundits think that the justices will legalize gay marriage across the board, if for no other reason than the Court’s anxiousness over a potential backlash from the public. The fear is that “judicial activism,” in which an unrepresentative and unaccountable court strikes down a democratically enacted law, would become an even greater part of the American political lexicon.
The justices are very cognizant of a potential backlash because, as Alexander Hamilton once famously noted, the Court “has no influence over either the sword or the purse.” In other words, the justices lack the hard power needed to enforce their own decisions.
A backlash from a sweeping gay marriage opinion, this line of reasoning holds, would undermine the Court’s legitimacy. UCLA Law Professor Adam Winkler expressed these sentiments in a Huffington Post blog entry recently.
In this instance, I believe these fears the justices may hold are misguided.
Many political scientists are skeptical of the ability of litigation to achieve meaningful social change. Tom Clark has found that the Supreme Court becomes less likely to strike down laws in periods where Congress exhibits greater hostility to the Court. He was lucky enough to attend oral argument in person yesterday, and he was struck by how uncomfortable the justices seemed of the broader political context of these cases.
Gerald Rosenberg examined the historical record after segregation was ruled unconstitutional in Brown v. Board of Education. Not only did he find evidence of a significant backlash among Southern politicians but very little evidence that the Court’s opinion persuaded the public or political leaders.
Desegregation did not really start to become a reality until the passage of the 1964 Civil Rights Act, and, according to Rosenberg’s account, the most galvanizing force in convincing Congress to pass that law was the Selma race riots. Because of the growth in sales of television, many people for the first time saw with their own eyes the violence and hostility African Americans faced in the South.
Having a personal or emotional connection to a political issue is an especially effective means of persuasion. (The presidential campaigns put 1 million ads on the air last year, but political science research indicates face-to-face canvassing is far more effective.) One reason public opinion has changed so dramatically on gay marriage is because nearly 80 percent of Americans have a relative, close friend, or co-worker who is openly gay, including Chief Justice John Roberts.
When Senator Rob Portman’s son came out as a gay man, the Ohio Republican quickly changed his position in support of same-sex marriage. Many other Republican leaders submitted an amicus curiae (or friend-of-the-Court) brief in support of gay marriage. Gay marriage enjoys even stronger support among Democratic leaders, including many moderates.
This support from political leaders, though far from universal, provides the backdrop the Court would need to have a sweeping legalization of gay marriage administered effectively.
The vast majority of Americans trust the Supreme Court to decide questions involving constitutional rights. And, despite news media portrayals to the contrary, a significant portion of the population does not have strong view on the issue of gay marriage. These are exactly the type of people who are the most open to persuasion by a strongly worded Supreme Court decision, according to one major school of thought in political science.
Whether the struggle for equal rights for gays and lesbians is strongly analogous to the Civil Rights movement in the last century is a debate I will leave to others. However, I think the evidence from political science suggests the reaction to legalizing gay marriage will not closely resemble the Massive Resistance movement that followed the Supreme Court’s attempts to desegregate.