In his great travelogue, Democracy in America, Tocqueville famously wrote that “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” If you haven’t heard, last week the Supreme Court accepted two cases regarding gay marriage. How they will rule is anyone’s guess, but here’s one interesting question that we can try to address: for supporters of gay marriage, would it have been better if the courts had just left the issue alone a little longer?
One of my professors made a sports analogy, “If you’re making good progress, and it looks like you’re probably going to score a touch-down, at that point in the game why on earth would you decide to throw a hail-mary pass?” The gay rights movement has been pretty much succeeding. Society is now more accepting of sexual minorities than it ever has been, and there’s no reason to think that this rapid social change will reverse itself in the near future. However, a win in the Supreme Court could potentially do just that.
The argument is that just as Brown v. Board of Education slowed down the efforts of desegregation in the South and Roe v. Wade made it more difficult for women in many states to get an abortion, so a win for gay rights in the courts could be a loss in the states. Why these paradoxical results? Essentially, the Court decisions polarized critics of the outcomes and caused supporters to naively believe that they had won. As a consequence, people who opposed desegregation suddenly had a stronger voice than they would have had the Court decided not to take the cases to begin with. The worry in this case is that a favorable decision for gay marriage could produce a negative backlash, and that upholding DOMA could ultimately hurt the gay rights movement. So why did the Court even take the cases to begin with? Perhaps Rosenberg’s theory does not hold as much sway today as it used to, and the Court believes in the power of its decisions to affect change? Or maybe the Court pretty much agrees with the “constrained court” thesis and took the cases to try to strike a blow against gay marriage. I would be interested to learn more about the politics behind the decision, and will be curious to see how they rule in June.
My opinion? They should rule to strike down DOMA regardless of the outcome for the gay rights movement. Because the act seems to be unconstitutional on 14th amendment grounds, and the first and last job of the court should be to defend the constitution.