University of San Diego lawprof Michael Rappaport has a thoughtful response to my post arguing that pro-gay marriage court decisions advance gay rights despite the fact that they have inspired a major political backlash.

In my original post, I argued that these decisions are a net benefit to the cause of gay marriage for three reasons:

1. They have established gay marriage in two states (Massachusetts and Connecticut) where the political process was unlikely to do so in the near future.

2. The anti-gay marriage state constitutional amendments enacted in their aftermath occurred in states that would not have adopted gay marriage in the foreseeable future anyway. Moreover, most of these amendments will be easy to reverse if public opinion continues to move in a pro-gay rights direction.

3. Putting gay marriage on the political agenda has brought newfound legitimacy to civil unions, which seem more moderate by comparison, and now enjoy widespread support even among conservatives.

Michael doesn't completely reject these points. But he does note a countervailing consideration: people are likely to view a pro-gay marriage court decision as less "legitimate" than a similar legislative measure, and might therefore resist it more. He also suggests that the recent uptick in support for civil unions is the result of a long-term trend of reduction in homophobia rather than the pro-gay marriage court decisions.

On the first point, Michael may be right to some extent. However, it's important to remember that the choice gay rights advocates face is not one between enactment of gay marriage through the legislative process and enactment through court decisions, but rather between court decisions and no gay marriage at all for many years. Even if enactment through the legislature is the best option from their point of view, a pro-gay marriage court decision is still better than nothing. Moreover, I doubt that the anti-gay marriage backlash would have been significantly smaller if Massachusetts had enacted gay marriage legislatively. Lots of polling data shows that public attitudes towards controversial court decisions are mostly results-oriented rather than driven by "legitimacy" considerations (Terri Peretti's book compiles much of this evidence). For example, pro-lifers overwhelmingly oppose Roe v. Wade and pro-choicers overwhelmingly support it, with very few people, for example, taking a pro-choice position yet believing that Roe was wrongly decided.

Michael's second point undoubtedly has a lot of validity. Much current support for civil unions (and gay marriage as well) is indeed the result of long-term trends. However, longterm trends cannot explain the major, sudden surge in support for civil unions that occurred in 2003-2004, in the immediate aftermath of the Massachusetts Supreme Court decision mandating gay marriage. They also cannot explain the apparent decline in conservative activist opposition to civil unions over the last few years. Recall that conservative activists were strongly opposed to the creation of civil unions in Vermont in the late 1990s, at a time when gay marriage was just beginning to get on the political agenda.

Overall, Michael is right to suggest that pro-gay marriage court decisions carry some costs for gay rights advocates. But those costs are likely outweighed by the benefits.