The Impact of Judicial Power on Gay Marriage Revisited:

Legal scholars such as Jeffrey Rosen and Gerald Rosenberg have argued that judicial decisions striking down state bans on gay marriage have ultimately set back the cause of gay equality by stimulating an anti-gay marriage political backlash. Back in November, I wrote a post criticizing this view, noting that judicial decisions have led to much faster adoption of gay marriage than would have occurred otherwise. Since November, three more states - Iowa, Maine, and Vermont, have legalized gay marriage and New Hampshire is likely to do so soon, despite some delays. Three of those four states (all but Iowa) have adopted gay marriage through the legislative process (or almost done so, in the case of NH), which suggests that the power of the anti-gay marriage backlash is waning.

These developments provide additional support for my argument that judicial review has been a net plus for the gay marriage movement. It is unlikely that either these four states or the two that adopted gay marriage earlier would have done so as quickly were it not for the momentum generated by the Massachusetts Supreme Judicial Court's 2003 Goodridge decision mandating gay marriage equality in that state. Until that point, gay marriage seemed a very distant prospect in virtually every state, even the more liberal ones.

Rosen, Rosenberg, and others point out that the post-Goodridge backlash led to the enactment of anti-gay marriage state constitutional amendments in some 30 states. However, as I explained in my November post, these states did not have gay marriage previously and were unlikely to enact it anytime soon. When and if public opinion in those states shifts in favor of gay marriage, the state constitutional amendments banning it will not be much of an obstacle. Most of the state constitutions in question are relatively easy to amend (which is one of the reasons why gay marriage opponents were able to push through their own amendments so quickly after 2003). Meanwhile, six states now have gay marriage, which is probably six more than would have had it at this point in the absence of the Massachusetts decision. A seventh state, California, would have gay marriage now as well, if not for a very narrow referendum defeat in November.

To say that pro-gay marriage judicial review has been effective in advancing cause of gay rights is not to say that it was legally correct. I myself have serious doubts about the legal justifications for some of the state pro-gay marriage rulings. It also doesn't mean that judicial review is so powerful that judges can get away with doing anything they want. Obviously, the pro-gay marriage judicial decisions would not have occurred were it not for the general liberalization of societal attitudes towards gays over the last several decades. By 2003, the majority of the public wasn't yet ready to support gay marriage; but they were much less hostile to it than even a decade earlier. And elite opinion was even more favorable. Judges do not operate in a vacuum, and their power is limited by political constraints. Even so, it is now increasingly clear that judicial intervention has been a major net benefit for the cause of gay rights.