Writing a judicial opinion can be like fencing. One of the most effective ways to jab at an opponent is to use his — or her — words to make your own case.
Thus, Chief Justice John G. Roberts Jr., warning in the same-sex marriage case about the harmful results of the court’s intervention:
“There will be consequences to shutting down the political process on an issue of such profound public significance,” Roberts wrote in his dissent. “Closing debate tends to close minds.”
In support, Roberts archly quoted the observations of “a thoughtful commentator” — Justice Ruth Bader Ginsburg on abortion rights.
“The political process was moving . . ., not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting,” then-Judge Ginsburg said in a 1985 lecture critical of the high court’s approach in Roe v. Wade. “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
Except, same-sex marriage is not like abortion. The scattered brushfires of official resistance to the court’s ruling last week are already beginning to burn themselves out. Even as abortion continues to divide the country and the justices (see, for example, Monday’s 5-to-4 vote blocking enforcement of a Texas abortion law), same-sex marriage, I believe, will prove to be far less inflaming.
Indeed, the Ginsburgian narrative of Roe as a politically polarizing force does not present the full picture. Unlike the case with same-sex marriage, legislative progress to relax abortion restrictions had begun to slow in the years before Roe.
But even assuming Roe fueled a poisonous national argument over abortion, there are reasons to doubt that the court’s edict in Obergefell v. Hodges, decreeing a constitutional right to same-sex marriage and removing the issue from the democratic arena, will produce an analogous backlash.
One reason concerns the fundamental difference between abortion and same-sex marriage, as much as opposition to both is fiercely felt. For those who believe that life begins at conception and that abortion is therefore tantamount to murder, abortion poses a clear harm and an identifiable victim.
For those who believe homosexual conduct is sinful and marriage is a sacrament limited to one man and one woman, the potential damage posed by an expanded definition of marriage is much harder — indeed, essentially impossible — to articulate.
The challenge leaves lawyers defending marriage bans stammering about the derivative harm that would somehow befall children in traditional marriages if the link between marriage and procreation were severed.
“There’s harm if you change the definition because, in people’s minds, if marriage and creating children don’t have anything to do with each other, then what do you expect? You expect more children outside of marriage,” John Bursch, defending Michigan’s marriage law, told the justices.
Right, there’s going to be less straight marriage and more out-of-wedlock births if gays and lesbians are allowed to marry and have the children they’re already having under the auspices of marriage. How much simpler to brandish a sonogram of a developing fetus.
Another reason to doubt any coming backlash can be found in the polls. The trend line on abortion is essentially flat over the past four decades. In 1977, 19 percent of those surveyed by Gallup believed abortion should be illegal under all circumstances — the same number as in 2015.
Meanwhile, the generational differences are muted. According to the Pew Research Center, 57 percent of adults under age 30 say abortion should be legal in all or most cases, the same as among those in their 30s and 40s, and just a shade higher than the 55 percent of those in their 50s and early 60s.
On marriage, the public transformation has been rapid and the generational divide cavernous. In 1996, 68 percent told Gallup they were opposed to recognizing marriages between same-sex couples. By May of this year, that share had fallen to 37 percent.
In generational terms, Pew found 73 percent support for same-sex marriage among millennials, born after 1980, and 59 percent support among Gen Xers (1965-1980); by contrast, just 39 percent of the oldest cohort backed gay marriage, although that was nearly double the share in 2001. In short, opposition to same-sex marriage is, literally, dying out; opposition to abortion is persisting.
To riff on the chief justice: If you are among the many Americans disappointed in the marriage ruling, by all means, bemoan it.
But do not bemoan the coming public backlash. That part’s not going to happen.