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How gay marriage advocates learned to love the courts
Ten years ago, people said fighting for equality in the courts was a bad idea. Boy, were they wrong.
 
Power to the people.
Power to the people. (AP Photo/Jeff Chiu)

This week is the 10th anniversary of the landmark decision Goodridge v. Massachusetts, which made the Bay State the first in the country to legally recognize same-sex marriages. That this was a huge victory for gay and lesbian rights may seem too obvious to even mention. This is particularly true in a week in which same-sex marriage was legalized, at least for the time being, by courts in Oregon and Pennsylvania.

But at the time, the decision was very controversial — not only among opponents, but among supporters of same-sex marriage, many of whom said it could create a backlash that would scuttle their hopes for equality. Such false predictions about the effects of Goodrich were not only needlessly pessimistic, but also offer some important insights into the dynamics of bringing about genuine social change.

In 1991, Gerald Rosenberg published The Hollow Hope, perhaps the most important and influential book about the Supreme Court written by a political scientist in the last quarter-century. Rosenberg argued that the ability of the courts to generate social change was generally overrated. While I don't agree with all of his arguments, the book was an important and useful corrective for progressives who put too much faith in the judiciary to advance their agenda following the heyday of the Warren court.

In a revised edition that came out in 2008, Rosenberg argued that the campaign to achieve same-sex marriage rights through litigation was a massive blunder. "[A]ctivists for same-sex marriage turned to the courts too soon," Rosenberg argued. They would have been better off with a legislative strategy "that would be less likely to produce backlash." Many pundits, including those who supported same-sex marriage rights, echoed these claims.

The idea that social change achieved through the courts produces more backlash than comparable social change achieved through legislatures is a common one, most often heard about Roe v. Wade. Specifically, the idea is that court-driven change ensnares the issue in accusations of judicial activism, rather than letting it evolve quietly and organically, a trope that even Justice Ruth Bader Ginsburg has bolstered. (My scholarly work suggests that these claims are not actually very persuasive in the abortion context either.)

Was there good reason to believe in 2004 that Goodridge would be counterproductive?

In fact, the argument as applied in the context of same-sex marriage was very odd, given the history of the fight for gay equality. One of the first major backlashes against anti-discrimination efforts was the hateful campaign led by the evangelical popular entertainer Anita Bryant in 1977, which was spurred not by judicial decisions, but by civil rights ordinances passed by elected local officials. When Colorado voters in 1992 passed a constitutional amendment to prevent gays and lesbians from being grouped as a protected class, that was in response to ordinances enacted by local governments (the Supreme Court struck down the amendment in 1996).

There's no evidence that the public responds to judicial opinions differently than it responds to legislation. And there's no good reason to believe that the backlash to Goodridge represented concerns about procedure, as opposed to a substantive opposition to same sex marriage in principle.

Indeed, when Maine followed the approach urged by so many pundits and legalized same-sex marriage legislatively, the response was... a referendum overturning the legislation. This referendum produced its own backlash, and Maine's electorate finally voted to legalize same-sex marriage in 2012.

The lesson is that political conflict cannot be avoided merely by avoiding particular means of affecting social change. When proponents of social reform win, they will likely generate a backlash by supporters of the status quo — no matter what institution creates the policy change. The only way to avoid backlash is simply to not win.

At this point, the success of the gay marriage litigation campaign should be clear. Public opinion has trended in a remarkably positive direction, ultimately reaching the politically cautious occupant of the White House. Same-sex marriage rights have continued to advance at the state level, and such marriages now have federal recognition thanks to the Supreme Court's Windsor decision last year. Arguments that the judicial decisions favoring same-sex marriage would be a major liability for the Democratic Party have proven to be unfounded.

However, it's important not to ignore the lessons of The Hollow Hope. Many issues will not be amendable to successful court campaigns, and challenges to bans on same-sex marriage have a potential cross-ideological appeal that is increasingly rare in today's polarized political and legal environment. The lesson of Goodridge isn't that litigation will always, or even usually, be a good solution — it is merely that progressives shouldn't unilaterally disarm in cases where it can be effective.

 
Scott Lemieux is a professor of political science at the College of Saint Rose in Albany, N.Y., with a focus on the Supreme Court and constitutional law. He is a frequent contributor to the American Prospect and blogs for Lawyers, Guns and Money.

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