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 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 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 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 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, civil unions are now supported by the majority of the general public, and even by some social conservative politicians, including 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 popular 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 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.