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Does the Anti-Gay Marriage Backlash Prove that Judicial Review is Ineffective?

In recent years, leading scholars such as Michael Klarman and Gerald Rosenberg have argued that judicial review is rarely if ever effective in protecting rights that aren't supported by the political branches of government and majority public opinion. The political backlash against the Massachusetts Supreme Judicial Court's 2003 gay marriage decision has seemingly added fuel to these revisionists' fire.

As Jeffrey Rosen argues in a recent New Republic debate that the Goodridge decision led to a massive political backlash, with some 30 states enacting anti-gay marriage amendments to their constitutions as a result. The most recent setback was the passage of California Proposition 8, which reversed a pro-gay marriage California Supreme Court decision. Rosen concludes that judicial review has set back the cause of gay marriage more than it advanced it. In a recent updated edition of his book The Hollow Hope: Can Courts Bring About Social Change?, Gerald Rosenberg - perhaps the leading academic advocate of the view that judicial review is largely ineffective - argues that the gay marriage battle provides further evidence for the validity of his thesis. Judicial decisions that run counter to majority opinion, he claims, actually undermine the rights they seek to protect by generating political backlashes and diverting valuable resources away from more promising strategies.

In my view, the Klarman-Rosenberg thesis is greatly overstated, and the gay marriage battle actually proves that courts can have a significant impact even in some cases where their decisions run counter to majority public opinion. Richard Just puts the point well in his response to Rosen:

I think it's important to point out that the gay rights movement has not worked exclusively through the courts. The reason it sometimes appears that the gay marriage movement has focused on the courts is because those are the only places it has actually had success. Thanks to courts, we have marriage equality today in two states (Massachusetts and Connecticut); without courts, we would have marriage equality in no states. Would the gay rights movement really be better off with no court-imposed gay marriage--and therefore no gay marriage at all?

You blame the 2003 Massachusetts decision for leading to gay-marriage bans in 30 states. I would put the numbers a bit differently. In states where courts have imposed gay marriage, we are now two for three in terms of making the ruling stick. (We lost in California. But in Massachusetts, where polls swung in favor of gay marriage within a year of the first same-sex marriage, we have effectively won. And likewise in Connecticut, where voters this week rejected calls by conservatives to hold a constitutional convention for the purpose of overturning the state supreme court's ruling on marriage equality.) By contrast, in states where courts have not imposed gay marriage, we are zero for 47. And, in many of these states (New York, for instance), this has not been for a lack of effort on the part of gay activists and the politicians allied with them.

The crucial point here is that in 29 of the 30 states that passed anti-gay marriage amendments, there wasn't any legal gay marriage anyway. Thus, gay marriage advocates didn't actually lose much in these states. To be sure, the enactment of these amendments may make it more difficult to adopt gay marriage in the future. Rosen emphasizes this point. However, it's important to remember that most state constitutions are actually easy to amend. That's why the anti-gay marriage forces were able to pass their amendments so quickly. In many states, a state constitutional amendment is an only slightly greater obstacle to legal change than a statute. From a pro-gay rights standpoint, the adoption of gay marriage in two states and its near-adoption in California was likely worth the cost of making gay marriage slightly more difficult to enact in some 30 states where it was unlikely to be adopted in the near future anyway.

Moreover, both Just and Rosen undervalue the extent to which the pro-gay marriage court decisions have shifted the parameters of the political debate. With the relatively radical gay marriage option now on the table, other pro-gay rights measures such as civil unions seem moderate by comparison. Thus, civil unions are now supported by the majority of the general public, and even by some social conservative politicians, including George W. Bush. It is difficult to imagine this result coming about so quickly without the pro-gay marriage judicial decisions.

None of this proves that the state supreme court decisions requiring gay marriage were correctly decided. It does, however, show that judicial power is often more potent than the Klarman-Rosenberg thesis suggests. To be sure, courts are unlikely to protect rights that are completely bereft of support elsewhere in society. If not for the liberalization of popular attitudes towards gays over the last 50 years, there would never have been enough pro-gay judges to reach decisions like Goodridge. But although the courts are not completely free of outside constraints, they can indeed sometimes protect rights that are opposed by majority opinion and by the political branches of government. Co-blogger David Bernstein and I tried to outline the conditions under which that might happen in this 2004 Yale Law Journal article criticizing Klarman. Although we didn't focus on the gay marriage battle specifically, many of our points apply to it as well.

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Do Pro-Gay Marriage Court Decisions Harm the Cause of Gay Rights?

University of San Diego lawprof Michael Rappaport has a thoughtful response to my post arguing that pro-gay marriage court decisions advance gay rights despite the fact that they have inspired a major political backlash.

In my original post, I argued that these decisions are a net benefit to the cause of gay marriage for three reasons:

1. They have established gay marriage in two states (Massachusetts and Connecticut) where the political process was unlikely to do so in the near future.

2. The anti-gay marriage state constitutional amendments enacted in their aftermath occurred in states that would not have adopted gay marriage in the foreseeable future anyway. Moreover, most of these amendments will be easy to reverse if public opinion continues to move in a pro-gay rights direction.

3. Putting gay marriage on the political agenda has brought newfound legitimacy to civil unions, which seem more moderate by comparison, and now enjoy widespread support even among conservatives.

Michael doesn't completely reject these points. But he does note a countervailing consideration: people are likely to view a pro-gay marriage court decision as less "legitimate" than a similar legislative measure, and might therefore resist it more. He also suggests that the recent uptick in support for civil unions is the result of a long-term trend of reduction in homophobia rather than the pro-gay marriage court decisions.

On the first point, Michael may be right to some extent. However, it's important to remember that the choice gay rights advocates face is not one between enactment of gay marriage through the legislative process and enactment through court decisions, but rather between court decisions and no gay marriage at all for many years. Even if enactment through the legislature is the best option from their point of view, a pro-gay marriage court decision is still better than nothing. Moreover, I doubt that the anti-gay marriage backlash would have been significantly smaller if Massachusetts had enacted gay marriage legislatively. Lots of polling data shows that public attitudes towards controversial court decisions are mostly results-oriented rather than driven by "legitimacy" considerations (Terri Peretti's book compiles much of this evidence). For example, pro-lifers overwhelmingly oppose Roe v. Wade and pro-choicers overwhelmingly support it, with very few people, for example, taking a pro-choice position yet believing that Roe was wrongly decided.

Michael's second point undoubtedly has a lot of validity. Much current support for civil unions (and gay marriage as well) is indeed the result of long-term trends. However, longterm trends cannot explain the major, sudden surge in support for civil unions that occurred in 2003-2004, in the immediate aftermath of the Massachusetts Supreme Court decision mandating gay marriage. They also cannot explain the apparent decline in conservative activist opposition to civil unions over the last few years. Recall that conservative activists were strongly opposed to the creation of civil unions in Vermont in the late 1990s, at a time when gay marriage was just beginning to get on the political agenda.

Overall, Michael is right to suggest that pro-gay marriage court decisions carry some costs for gay rights advocates. But those costs are likely outweighed by the benefits.

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Does the "Example Effect" of Gay Marriages Made Possible by Pro-Gay Marriage Court Decisions Increase Support for Gay Marriage?

Gay rights advocates often claim that pro-gay marriage court decisions increase public support for gay marriage through the "example effect" of giving heterosexuals an opportunity to observe happily married gay couples. People who see or better still, personally know, gays who benefit from being able to marry are likely to become more sympathetic to gay marriage than they were before. Since pro-gay marriage court decisions allow gays to marry in states where they would not be able to otherwise, they presumably contribute to opinion-altering example effects.

I think there is something to the example effect argument. But there is a reason why I didn't include it in my litany of reasons why pro-gay marriage court decisions help advance the cause of gay rights: I fear that the effect may be overblown.

Lots of surveys show that personal acquiantance with gays is correlated with support for gay marriage. For example, a recent Pew survey shows that 55% of those who have gay friends or relatives support gay marriage, compared to only 25% of those who don't. This data may support the example effect thesis. However, it is not clear which way the causation runs. It could be that heterosexuals who are already more tolerant are more likely to establish friendships with gays than those who are less so. Moreover, gays are more likely to "come out" to tolerant acquiantances than homophobic ones.

Other survey data suggest that the legalization of gay marriage in Massachusetts and Connecticut has not increased public support for it. Today, 55% of Americans oppose gay marriage and 36% support it, statistically identical to the 57-35 margin that existed in early 2001 (two years before the Massachusetts decision). There is, therefore, little evidence that the example effect of gay marriage has increased support for the practice, at least so far.

The history of interracial marriage, to which the gay marriage struggle is often analogized, is also a case in point. Interracial marriage was legal in many northern states throughout the Jim Crow era. Yet there is little if any evidence suggesting that this fact diminished public opposition to interracial marriage during most of that time. Jim Crow-era black public figures who married whites, such as Frederick Douglass and Jack Johnson, were widely reviled for doing so, sometimes even by other African-Americans. Their examples had little positive influence on public opinion.

More generally, the way one reacts to the existence of gay marriages depends in large part on one's preexisting views. A person supportive of gay rights is likely to applaud the sight of married gay couples. A homophobe is likely to to consider it offensive and perhaps become even more virulent in his opposition to the practice. This is part of the more general phenomenon that people tend to interpret new political information in ways that reinforce their preexisting views.

That said, it may be that example effects will influence public opinion in a pro-gay marriage direction in the long run. There is some evidence that support for gay marriage has increased in Massachusetts since the state instituted it in 2003, even if it hasn't had the same effect nationally. I doubt, however, that the effect will be as great as many people think.

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The Impact of Judicial Power on Gay Marriage Revisited:

Legal scholars such as Jeffrey Rosen and Gerald Rosenberg have argued that judicial decisions striking down state bans on gay marriage have ultimately set back the cause of gay equality by stimulating an anti-gay marriage political backlash. Back in November, I wrote a post criticizing this view, noting that judicial decisions have led to much faster adoption of gay marriage than would have occurred otherwise. Since November, three more states - Iowa, Maine, and Vermont, have legalized gay marriage and New Hampshire is likely to do so soon, despite some delays. Three of those four states (all but Iowa) have adopted gay marriage through the legislative process (or almost done so, in the case of NH), which suggests that the power of the anti-gay marriage backlash is waning.

These developments provide additional support for my argument that judicial review has been a net plus for the gay marriage movement. It is unlikely that either these four states or the two that adopted gay marriage earlier would have done so as quickly were it not for the momentum generated by the Massachusetts Supreme Judicial Court's 2003 Goodridge decision mandating gay marriage equality in that state. Until that point, gay marriage seemed a very distant prospect in virtually every state, even the more liberal ones.

Rosen, Rosenberg, and others point out that the post-Goodridge backlash led to the enactment of anti-gay marriage state constitutional amendments in some 30 states. However, as I explained in my November post, these states did not have gay marriage previously and were unlikely to enact it anytime soon. When and if public opinion in those states shifts in favor of gay marriage, the state constitutional amendments banning it will not be much of an obstacle. Most of the state constitutions in question are relatively easy to amend (which is one of the reasons why gay marriage opponents were able to push through their own amendments so quickly after 2003). Meanwhile, six states now have gay marriage, which is probably six more than would have had it at this point in the absence of the Massachusetts decision. A seventh state, California, would have gay marriage now as well, if not for a very narrow referendum defeat in November.

To say that pro-gay marriage judicial review has been effective in advancing cause of gay rights is not to say that it was legally correct. I myself have serious doubts about the legal justifications for some of the state pro-gay marriage rulings. It also doesn't mean that judicial review is so powerful that judges can get away with doing anything they want. Obviously, the pro-gay marriage judicial decisions would not have occurred were it not for the general liberalization of societal attitudes towards gays over the last several decades. By 2003, the majority of the public wasn't yet ready to support gay marriage; but they were much less hostile to it than even a decade earlier. And elite opinion was even more favorable. Judges do not operate in a vacuum, and their power is limited by political constraints. Even so, it is now increasingly clear that judicial intervention has been a major net benefit for the cause of gay rights.

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Why Last Year's California Pro-Gay Marriage Decision Remains a Net Positive for Gay Rights Even after Proposition 8:

Today's California supreme court decision upheld Proposition 8, a constitutional amendment that reversed that court's previous ruling holding that gay marriage was required by the state constitution. In previous posts (see here and here), I criticized the view that the success of Proposition 8 and similar initiatives in other states proves that pro-gay marriage court decisions set back the cause of gay rights more than they advance it.

It is now fairly clear that judicial rulings have helped the cause of gay marriage in the nation as a whole. But it's worth noting that the 2008 pro-gay marriage court decision was a net plus for gay rights even within California itself. After all, the court's decision upholding the validity of Proposition 8 also ruled that the 18,000 gay marriages that took place in California last year remain legally valid. That, of course, is 18,000 more gay marriages than would likely have occurred otherwise. Thirty-six thousand people who now can marry their partners of choice falls short of the ultimate objectives of the gay marriage movement. But it is nothing to sneeze at.

Even a pro-gay marriage decision that ultimately gets reversed can be a net benefit to the cause. That doesn't prove that the decision was legally correct. But it is a useful point to keep in mind in assessing the effectiveness of judicial power in promoting minority rights.

UPDATE: At Balkinization, Mary Dudziak and Andrew Koppelman also argue that the California struggle over same sex marriage remains a net plus for gay rights.

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