Posted by Ilya Somin:
Does the Anti-Gay Marriage Backlash Prove that Judicial Review is Ineffective?
http://volokh.com/archives/archive_2008_11_16-2008_11_22.shtml#1226989317
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 [1]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 [2]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 [3]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 in most 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, [4]civil unions are now supported by the
majority of the general public, and even by some social conservative
politicians, including [5]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 social 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 [6]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.
References
1.
http://www.tnr.com/politics/story.html?id=fcb8bfb9-a829-4d92-84d5-a180a06c118a
2.
http://www.amazon.com/Hollow-Hope-American-Politics-Political/dp/0226727033
3.
http://www.tnr.com/politics/story.html?id=485a245e-84b3-4534-99e3-2bcfe63952d7
4. http://www.msnbc.msn.com/id/4496265/
5. http://www.accessmylibrary.com/coms2/summary_0286-14864158_ITM
6. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=620781
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
