Reassessing the Impact of Pro-Gay Marriage Judicial Decisions

With Rhode Island and Delaware recently becoming the tenth and eleventh states to permit same-sex marriage and Minnesota likely to soon become the twelfth, now is a good time to reconsider the impact of judicial decisions requiring state recognition of gay marriage. The trend towards gay marriage began in 2003, with a Massachusetts Supreme Judicial Court decision holding that the state constitution required recognition of same-sex marriage. At first, nearly all the states that recognized gay marriage did so as a result of judicial decisions rather than legislation. In this way, it seems clear that the cause of gay marriage benefited greatly from judicial action.

Nonetheless, scholars such as Gerald Rosenberg and Jeff Rosen argued that such litigation harmed the cause of gay rights more than it helped it, because it tended to generate a political backlash, a theory that gained some credence in 2008, when Proposition 8 reversed a pro-gay marriage California Supreme Court decision. In a series of posts written in 2008-2009, I argued that such skepticism was unjustified, and that pro-gay marriage judicial decisions were a major net benefit for the cause of gay rights, backlash notwithstanding.

I think recent events largely vindicate my side of this debate. Since early 2009, the number of states legalizing same-sex marriage has grown from four to a soon-to-be twelve, with most of the recent ones doing so through the legislative process. This undercuts claims that judicial action undercuts political action. Public opinion has rapidly moved in a pro-gay marriage direction, undercutting arguments that litigation would turn the public against the cause. And, of course, the Supreme Court might be on the brink of requiring recognition of gay marriage from some or all of the states that still deny it. That is highly unlikely to have happened absent litigation-driven progress at the state level. Even if the Supreme Court upholds California Proposition 8, it would likely do so only by a very narrow margin that could easily be reversed by future decisions – signalling that the issue is contested in a way that was clearly not the case just 10-15 years ago.

Obviously, some of this progress is the result of long-term trends in public and elite opinion that would have occurred even without litigation. But it is unlikely it would have happened anywhere near so quickly were it not for the example effect of the establishment of gay marriage in Massachusetts and other states where it happened through judicial action. These decisions made gay marriage seem much more thinkable and mainstream than before. They also helped galvanize the gay rights movement. Furthermore, they made the previously radical idea of civil unions seem moderate by comparison, which in turn helped lead to their adoption in ten states that still do not permit full-blown gay marriage. As in the case of the civil rights movement, feminism, the gun rights movement, and property rights activists, among others, judicial action and political action turned out to be mutually reinforcing rather than antagonistic.

The political backlash against the 2003 Massachusetts decision did lead to the enactment of anti-gay marriage constitutional amendments in some thirty states. But for reasons I noted in this 2009 post, that was only a minor setback for gay rights activists. All but one of these states (California) were unlikely to enact gay marriage in the near future anyway. In addition, most of their constitutions are relatively easy to amend, which means that it will not be hard to reverse these amendments when and if public opinion in the state changes.

None of this proves that pro-gay marriage decisions were legally correct. In my view, gay marriage bans violate the federal Constitution because they constitute sex discrimination, and also those state constitutions that contain Equal Rights Amendments. But the correctness of these decisions is separable from their impact. They could be practically effective but legally dubious, or vice versa. Overall, litigation has turned out be a highly effective strategy for gay marriage advocates, whatever you might think about the correctness of their legal arguments.

That does not mean, of course, that litigation is always an effective strategy for all social movements. In order for it to succeed, there has to be at least some amount of preexisting support for the cause among both elite and general public opinion. Efforts to secure recognition of same-sex marriage through legal action flopped in the 1970s, because that base level of support was still lacking. Even where litigation does work, it is usually effective only in tandem with political activism, rather than completely removed from it.

But the recent history of gay marriage does show that litigation can often help advance a cause significantly faster and more effectively than would be the case otherwise. It therefore helps undercut the arguments of revisionist scholars who claim that such action is almost always ineffective, except in cases where the political process is likely to reach the same results on its own.

Co-blogger David Bernstein and I criticized such revisionist arguments in this 2004 article, focusing on the history of civil rights litigation. We pointed out several ways in which litigation can help disadvantaged minorities even when the political majority remains hostile or indifferent. The gay marriage case seems consistent with our theory as well.