Political Animal


December 10, 2012 9:24 AM Brown or Backlash?

By Ed Kilgore

The Supreme Court’s agreement to hear two same-sex marriage cases has created a sort of solemn expectation that the Big Moment may be about to happen on LGBT rights: a landmark decision that like Brown v. Board of Education changes everything forever. That expectation, of course, is based far less on any signals from the Supremes than from the unmistakable shift in public opinion on the subject, graphically demonstrated by the unprecedented victories for marriage equality at the polls on November 6 .

At TNR, Linda Hirshman draws from the precedents of the civil rights and women’s movement to warn that legal acknowledgements of big social changes occur according to their own timetable. It’s not at all certain, she says, that the time is ripe for a landmark decision by this particular Supreme Court, which is what one case, the challenge to California’s Prop 8, is designed to produce:

Starting in 1974 with the campaign against the criminal sodomy laws, the gay legal movement methodically assembled an incremental strategy, patterned on the racial and gender models, for dismantling the structure of law that marginalized and demonized their sexual relations. In 1991, when Hawaii unexpectedly considered legalizing gay marriage, the same institutions and the same players simply morphed into the marriage movement.
The lessons the gay litigators learned from the racial and gender civil rights movements led them to consider the federal courts in general and the Supreme Court in particular with extreme caution. When superlawyers David Boies and Ted Olson brought the head-on challenge to California’s antigay Prop 8 in 2009, they broke with this convention, and were heavily criticized for it. The ACLU’s Matt Coles called the suit a long shot and the marriage director for Lambda Legal said it was “risky and premature.”

A lot has happened in the three short years since the Prop 8 suit was filed. And as Hirshman notes, much of the groundwork for a more direct challenge to discriminatory laws has indeed already been laid by previous litigation. But it’s premature to celebrate:

The closest case to the Boies-Olson litigation in the women’s movement - Roe v. Wade — triggered a four decade backlash. Once before the gay movement overplayed its hand ever so slightly with the Court and got a terrible decision upholding the criminal sodomy laws. Gays almost won the first sodomy case; the decision in Bowers v. Hardwick was only 5-4, so it was hardly a foolhardy risk. And yet, it does make you shiver.
Of course, certiorari is not destiny. The Court could still weasel out of the Prop 8 decision by ruling that the case had technical problems with who can defend a law when the govern and attorney general have bailed. And then it could affirm the conservative premise of the DOMA case that Congress can’t withhold federal benefits from marriages some states have blessed. A direct constitutional challenge is coming anyway, but in constitutional litigation, as in marriage proposals, sometimes timing is everything.
Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • Anonymous on December 10, 2012 10:01 AM:

    "Of course, certiorari is not destiny. The Court could still weasel out..."

    Not surprising that there are at least 4 weasel's on the SC, and more than a few of them are rabid.

    I can definitely see Scalia looking forward to munching on some gay nuts as a mid-afternoon snack.

  • c u n d gulag on December 10, 2012 10:04 AM:

    "Anonymous" was me - c u n d gulag.

  • Don K on December 10, 2012 10:25 AM:

    I'd say it's way too early for a constitutional right to marriage. Give it a few years, let some more legislatures establish marriage equality and let a few more states establish it through the initiative.

    I'm not worried that the FMA could receive 3/4 of the vote in either house of Congress (it didn't even in the mid-00s when Reps brought it up for a vote), but I think we don't need the drama at this point.

    WRT DOMA, I'd say a decision ruling that Section 3 is unconstitutional, and that the feds have to recognize any validly contracted marriage, no matter the state of residence of the spouses, would be perfect.

  • skeptonomist on December 10, 2012 10:34 AM:

    The idea that the Constitution guarantees that two and only two people of the same or different sexes can marry, while more than two cannot, is pretty silly. At any rate, the present Court is not likely to decide this. On the other hand it is rapidly becoming more probable that popular vote will remove barriers to same-sex marriage.

    Or do same-sex marriage advocates think that polygamy is also OK?

  • Mimikatz on December 10, 2012 10:36 AM:

    Agree that the Feds should have to recognize any validly entered into marriage. Having to pretend one thing to state tax authorities and another to the Feds is insane, and denial of benefits and community property by the feds is really unfair. But what about other states recognizing a valid gay marriage? Wasn't there a problem like this when divorce laws varied widely from state to state? For a brief period people were bigamists in states that didn't reconpgnize divorce, as I recall. I can see allowing gay marriage but not making it a constitutional right (yet) but requiring under Full Faith and Credit that states without it and thr Feds must still recognize gay marriages from other states. There might be 5 votes for that.

    I still believe that Roberts doesn't want to be the 21st Century Roger Taney, in this or the Voting Rights Act.

  • LiberalGRIT on December 10, 2012 10:46 AM:

    I am SICK AND TIRED of the idea that "too early" = backlash.

    Brown v. Board was very early, when you look at the timing of the civil rights movement, and it had to be truly carried through by activists. The Civil Rights Act would not have happened without the activists pushing LBJ along. And I note that no one blames Brown v. Board for backlash in the form of the assassinations of Medgar Evers and MLK.

    And who thinks that the anti-woman, anti-sex theocrats would NOT have gone crazy after Roe v. Wade if it had just been a bit later? Come on! We're continuing to fight these battles because we have to, because a court ruling doesn't finish everything, but it does start something. (The idea that the court ruling is the be-all-end-all has been belied quite obviously by history.)

    I don't doubt that the Supremes' decision will be split and a half-measure by any rate. But it's NOT too early. We have been waiting for decades. It's time.

    And it's a bunch of blame-the-victim CRAP to say that "too early" means somehow that our society won't catch up. Because it will!

  • Rich on December 10, 2012 11:02 AM:

    If her recent book is any indication, Hirshman is more self-promoting gasbag than canny observer. Gay marriage is obviously very different from abortion, which, among other things, had been very common but illegal for decades. Gay marriage advocacy really was jumpstarted when all the major LGBT orgs were run by lesbians in the 90s--it was more their issue than gay men's. Moreover, support for gay marriage and other gay rights often has come from straight allies and broad mainline orgs like PFAW and ACLU. Gay orgs have been embarrassingly inept in their efforts (timid media media campaigns, HRC trying to stonewall votes in Maryland) and often semi-irrelevant.

    The Right has recycled many tactics from its opposition to ERA in the fight against gay rights, while also bringing up more gay-specific perennials like "what about the children?". If anything, they are the recyclers in this fight and the gay orgs have predictably failed to recognize this and anticipate their attacks. Public opinion might have moved more quickly if gay orgs had been more effective.

  • Josh G. on December 10, 2012 11:04 AM:

    You and Hirshman need to read Scott Lemieux's articles on "the countermobilization myth".

    There is no evidence that political change enacted through the courts generates more backlash than political change enacted through any other means. Sure, the people who were opposed to the change anyway will go on about courts usurping the will of the people, but don't make the mistake of taking that at face value. Virtually no one in America actually cares more about process than results.

  • Art Hackett on December 10, 2012 11:10 AM:

    The court could handle both by shaping a decision around the "full faith and credit" clause. States have the power to determine who may be married and other states have to recognize the other states' actions. Likewise with the federal government.
    But a state can chose not to allow gays to marry. Gays within those state can chose to travel to another state.
    Yeah, I know this violates the fourteenth amendment but the Bill of Rights (except for the second amendment and one part of the first) are suspect in some regions.

    The alternative is a decision that will order some Southern Baptist Clerk of Courts in a small town in Alabama or a Mormon in Provo, Utah to issue a certificate in violation of their religious principles. Heck, this is one part of Shariah law that even a conservative could love.
    The reason the gay marriage referendums passed was because they learned people like equal opportunity. They hate equal rights.

  • Aaron Morrow on December 10, 2012 11:11 AM:

    Let me agree with LiberalGRIT: there was plenty of Backlash to Brown. Anyone try and support busing to support school integration lately?

    There has always been and will always be conservative backlash to liberal successes.

  • James E. Powell on December 10, 2012 11:35 AM:

    I see Roberts as the key vote here, and if he votes in favor of strict scrutiny for gays/lesbians, then maybe Kennedy will come along.

    Roberts is more about the ruling class and corporate power, not so much about constitutional Jesus. The ruling class and corporations have no problem with gays/lesbians being treated like everybody else.

  • hornblower on December 10, 2012 11:49 AM:

    Brown overturning Plessey was the most important Supreme Court decision of the 20th century. I have no strong feelings about marriage equality. However, I object to any discussion these two issues in the same paragraph. I think there are many Americans like me who were passionate about equal rights and remain so but rarely give this issue a second thought. I couldn't care less about who people marry.

  • karl on December 10, 2012 12:44 PM:

    hornblower says, "I couldn't care less about who people marry."

    The analogous statement with regard to race would be something like, "I couldn't care less who eats in what restaurant, sleeps in what hotel, goes for what job, ..." It's of no interest to me whether someone wants to eat at Denny's or at Vic's Burger Shack. But I DO care if one of those restaurants is going to say that blacks can't eat there.

    Similarly, like hornblower, I don't care who marries whom. I'm happily married, and even if I weren't, I can't see what advantage I would have in courting a woman who would rather be with another woman than with any man.

    But I DO care that the law not be used to block her and her beloved from marrying, if they so choose.

  • Lance on December 10, 2012 4:02 PM:

    I expect the Court to punt on both cases, but it would be amusing if they decided them.

  • hornblower on December 10, 2012 5:53 PM:

    Karl, I strongly disagree with your analogy.