It’s hard to believe, in the wake of this week’s Supreme Court refusal to review federal court rulings in favor of gay marriage, but some gay-marriage backers once took a dim view of federal constitutional lawsuits meant to advance the cause.
They feared the consequences of losing, of course. But they also feared winning. Same-sex marriage by judicial fiat could be attacked as not only morally wrong but also anti-democratic, spawning a long-lasting backlash like the one against the court’s 1973 abortion-rights ruling, Roe v. Wade.
As Jonathan Rauch, a Brookings Institution scholar and longtime proponent of gay marriage, wrote in 2009: “[S]o abrupt and heavy-handed a means would undermine the desired end by fomenting a fierce backlash and making gay marriage a bone of national political contention for decades to come — if it did not produce a federal constitutional amendment banning gay marriage for good.”
This concern was hardly unfounded: A Hawaii court’s 1993 ruling provoked the federal Defense of Marriage Act; multiple states voted for one-man, one-woman constitutional amendments in 2004; Iowans voted out three state Supreme Court justices who had backed a pro-gay-marriage ruling.
Now, however, federal judges in some of the most conservative regions of the country have essentially decreed a constitutional right to same-sex marriage — and the response has been notable mainly for its tepidity.
Former Arkansas governor Mike Huckabee called on state officials to resist, but that solitary stand probably won’t get any more traction than his futile advocacy of a one-man, one-woman amendment to the Constitution. Sen. Ted Cruz (R-Tex.) called for a constitutional amendment, too — to enshrine the relatively moderate proposition that marriage should be left to the states.
Most GOP figures, including some facing reelection next month, such as Wisconsin Gov. Scott Walker and Senate Minority Leader Mitch McConnell of Kentucky, basically tried to change the subject. The new mainstream Republican position on gay marriage is not redoubled resistance; it’s embarrassed silence.
Obviously, the unexpectedly swift shift of public opinion in favor of gay marriage explains much of this muted response but not all of it. The public generally favored some form of legal right to abortion at the time of Roe, but that didn’t stop a dedicated minority from building a pro-life movement after the ruling came down.
Those of us who expected a greater backlash failed to anticipate that, even though gay marriage and abortion are both “social issues,” the former lacks the latter’s power to galvanize opposition — even on the right. Whereas the antiabortion cause draws energy from a narrative of harm rooted in the undeniably difficult physical realities of surgical pregnancy termination (“abortion stops a beating heart”), opponents of gay marriage struggle to describe its harms except in abstract terms of symbolism and tradition.
To be sure, they have made some headway in advancing a worst-case scenario based on religious objectors who might be forced to play some role in same-sex weddings, directly or indirectly. And, as Huckabee’s reaction shows, that will excite many evangelical conservatives.
But in cold political terms, the religious freedom issue is not the stuff of broad-based backlash. It’s a dilemma for a politically declining minority, whose legitimate concerns can probably be addressed.
The remaining issue of judicial usurpation is inherently procedural, of interest mainly to conservative legal intellectuals who themselves are probably generally far softer on gay marriage as a substantive issue than are evangelicals. Indeed, in the years since Roe, conservatives as well as liberals have discovered the uses of judicial activism. For today’s Republicans, there’s actually an ironic convenience in letting the courts relieve them of active responsibility for an issue that suddenly poses risks for the party on all fronts.
Perhaps everything will change if and when the Supreme Court issues a definitive, final ruling in favor of same-sex marriage. Meanwhile, marriage’s triumphant march through the lower courts is demonstrating that, while legislation is generally the optimal source of democratic legitimacy, as Rauch and others suggested, for this particular social revolution, it is not the only one.
Instead, we are witnessing an alternative process of legitimation, in which federal judges lead, and elected officials follow — but where the latter’s perceived political interest, in light of voter sentiment, causes them to accept (or acquiesce to) the courts’ rulings. It’s a passive, reactive kind of decision-making, to be sure, but meaningful nonetheless. In economics, they call this sort of thing “revealed preference.”
If these politicians have radically misread the public mood, voters retain ultimate power to hold them accountable, through the ballot box, Cruz’s amendment or one of the other myriad checks and balances of the American system.
But at this point, the only thing more astonishing than the gay marriage revolution would be a successful backlash against it.