Sounds like the plotline for an episode of Law & Order. Instead, this is a not-so-inaccurate characterization of what has come to embody the LGBT movement.
Thirty-seven states now permit same-sex marriage. In a whopping 26 of these states, same-sex marriage was legalized via a court decision (either state or federal) as opposed to a legislative action or a voter-approved initiative. This overwhelming reliance on judicial intervention is problematic for a movement that seeks to obtain long-term equality and respect for a group of people.
Nevertheless, LGBT advocates would like to have you think that the country is embracing same-sex marriage with open arms. To some extent this is true, as most polls show a national majority in support of redefining marriage to include same-sex marriage. Despite this support, recent polling indicates Americans are split 48-48 with regard to whether the Supreme Court should legalize same-sex marriage this June in DeBoer v. Snyder. This discrepancy in public opinion illuminates an underlying reality about the ineffectiveness and undesirability of judicial policymaking.
Gerald Rosenberg asserts in his 1991 book The Hollow Hope: Can Courts Bring About Social Change? that courts are not effective agents of social change. He uses the landmark 1954 case Brown v. Board of Education to substantiate his argument. Rosenberg points to the fact that school desegregation rates remained stagnant throughout the 1950s, and only began to rise following the 1964 Civil Rights Act, which withheld federal funding to schools that did not comply with desegregation.
Rosenberg also points to how public opinion regarding abortion essentially remained the same in the decades following the 1973Roe v. Wade decision. He suggests that, “reliance on the Court seriously weakened the political efficacy of pro-choice forces…the political organization and momentum that had changed laws nationwide dissipated in celebration of the Court victory.” Rosenberg summarizes this effect: “pro-choice forces abandoned the political arena to pro-life forces – and then professed surprise when pro-life forces won important electoral victories.”
Given that proponents of same-sex marriage have almost exclusively relied on the actions of courts as opposed to legislatures, they do risk suffering the same fate as pro-choice advocates. Indeed, many think a Supreme Court decision legalizing same-sex marriage would validate the current shift in public opinion and settle the issue once and for all. This could not be further from the truth.
Currently, four Supreme Court justices are older than 75 (Breyer, Scalia, Kennedy and Ginsburg). This means that the president elected in 2016 will likely be able to fundamentally alter the traditional 5-4 balance of power on the Court. In other words, there will be the opportunity for conservatives possibly to overturn a ruling in favor of same-sex marriage.
Indeed, controversial Supreme Court decisions, especially those that entail polarizing social issues, are often challenged and re-litigated. For example, the 1973 case Roe v. Wade, which legalized abortion, was subsequently confirmed in the 1992 case Planned Parenthood v. Casey. Like abortion, opposition to same-sex marriage entails arguments grounded in firmly held religious beliefs, psychology, and federalism. As a result, same-sex marriage will likely follow the same judicial trend of perpetually controversial Supreme Court decisions.
What further complicates the situation is the fact that the impending Supreme Court decision could legalize gay marriage without necessarily granting sexual orientation heightened scrutiny review. Without getting too deep in the legal weeds, this outcome would leave homosexuals without the discrimination protection afforded to women and ethnic minorities. This would likely catalyze even more litigation relating to same-sex marriage. When 57 percent of Americans currently believe that bakers and florists with religious objections should be afforded the right to deny service to same-sex weddings, this scenario is certainly fathomable.
It is still tempting to think that such a Supreme Court decision legalizing gay marriage will be met with widespread approval from the public. In a literal sense this will likely be true, as most Americans now support the legalization of same-sex marriage. However, many forget that in 1973 Americans supported the decision in Roe v. Wade by a decisive margin of 52-42. Despite this approval, Roe v. Wade has proven to be one of the most controversial Supreme Court decisions of all time.
As Rosenberg astutely notes, one-size-fits-all legal ultimatums usually prove ineffective in catalyzing a larger social movement. If anything, they further polarize the political process, as well as aggravate various political constituencies into enacting retaliatory legislation. Ultimately, shock-and-awe legal strategies have not worked in the past and they will not work for the LGBT movement. The Women’s Rights Movement secured the right to vote via the 19th Amendment, not a court decision. Likewise, the Civil Rights Movement secured tangible equality for African-Americans only after passage of the Civil Rights Act and Voting Rights Act. A favorable Supreme Court decision will undoubtedly strengthen the LGBT movement, but it will fall far short of catalyzing the progress desired by advocates.
Using an explicitly legal strategy has pitfalls and shortcomings that the LGBT movement ought to recognize. It must recognize that landmark Supreme Court decisions often have to be supplemented with democratic legislation to have any tangible effect, that contentious social issues are likely to remain contentious no matter how favorable the ruling, and that these types of legal strategies implicitly conflict with American public opinion. To be clear, judicial policy-making is not undesirable for the LGBT movement (it is obviously great for the movement and is helping it achieve its objectives), but it is undesirable for society in general. When courts become de facto policy-making institutions and litigation becomes our default option to resolve contentious issues, we relinquish our ability to be a nation ruled by democratically passed laws and opt, instead, to be ruled by nine justices sitting on a bench.
Why has the LGBT movement almost exclusively relied on the courts to achieve its objectives? If public opinion regarding same-sex marriage is so favorable, why haven’t advocates pursued their objectives in Congress or state legislatures? The answer is that the country is still very much divided on the question of same-sex marriage. Yes, public opinion is starting to shift. But, there are still large parts of the country that staunchly oppose same-sex marriage. This is the ugly truth that many do not want to accept.
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