Monday, December 1, 2008

Is Gay Marriage Helped By Judicial Decisions Constitutionalizing It?
Mike Rappaport

Ilya Somin, over at the Volokh Conspiracy, recently argued that the judicial decisions establishing gay marriage under state constitutions had furthered the cause of gay marriage.  He disagreed with those who believe the judicial decisions have not helped gay marriage in part due to a backlash that has led to a large number of state constitutional prohibitions on gay marriage.

Somin makes two main points.  First, in states where gay marriage lost in ballot initiatives, there wasn’t gay marriage anyway.  And those initiatives can be overturned pretty easily.  Thus, the costs from these initiatives is small and outbalanced by the advantages to gay marriage in the two states where it is now allowed due to court decisions – Massachusetts and Connecticut.  Second, gay marriage decisions have shifted the parameters of the debate.  By proposing a more radical proposal, they have led to the greater acceptance of civil unions.

Somin makes good points, but I wonder whether he is right.  First, he neglects an important aspect of the issue: legitimacy.  If people believe democratic decisions are more legitimate than judicial decisions, which in this case I believe they do, then these gay marriage decisions will be more resisted by people.  Many people will regard the gay marriage movement more negatively, because of their opposition to its methods.  Gay married couples will not receive the same acceptance as they would have had the decisions been adopted more legitimately. 

Second, I am not sure that judicial decisions establishing gay marriage really get the credit for the greater acceptance of civil unions.  The nation has been moving in the direction of greater tolerance for gays, especially through the culture and from younger people.  It is not clear how much, if any, of the acceptance of civil unions comes from judicial decisions in favor of gay marriage as opposed to moral and political arguments in favor of gay marriage and equal rights for gays.


Ilya has responded to my post.  Let me briefly respond.  First, Ilya says that judicial decisions have not done much to harm gay marriage.  I guess I just disagree, not having the read the source he cites.  If a majority of the legislature or the public enacts gay marriage, that gives it a greater legitimacy.  More importantly, where the majority opposes something and the courts simply imposes it by edict, the opponents tend to get inflamed.

Second, Ilya suggests that the sudden increase in civil unions was a response to the Massachusetts court decision.  Perhaps yes, perhaps no.  California and Washington, D.C. enacted civil union/domestic partnerships before the Massachusetts decision, and one would expect those examples to have been followed.  In any event, there were other ways to get the issue on the agenda.  

In the end, enacting gay marriage by legislation would provide it with a more secure and more accepted basis.  While judicial decisions could cause it to be enact quicker - or less quickly due to a backlash - it does not provide the same benefits in terms of integrating gay married couples into society. The best way to promote gay marriage is through the culture and through accepted forms of legal change.

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Mike Rappaport


The whole point of democracy is that contentious issues be debated; after due debate, even those who lose the vote will usually accept it as legitimate. I'd be inclined to vote against any measure introduced by judicial putsch, whatever its merits.

Posted by: dearieme | Dec 1, 2008 7:09:47 AM

Oh, I see, civil rights is offically a popularity contest now.
Btw, you forgot to mention that the California legislature, not once but twice, passed a marriage equality/gender neutral law....The Governor vetoed the law and said it should be up to the people and/or the what is it? Legislature, direct popular vote, court?

Second Btw, civil unions are not necessarily the same as domestic partnerships. The "Leave it to the States" mantra results in every state having it's own definition of how, what, when, where legal relationship recognition for same gender couples is defined.

Posted by: warren | Dec 2, 2008 2:15:57 PM

what if the public votes against it because of deceptive advertising? then i'm not sure we know the true feelings of the state on the matter. there ought to be some standards about how groups can frame the issue. they stopped just shy of saying "voting for gay marriage will surely turn your children gay."

the issue of how folks are able to distort the truth in political advertising is even more important than gay marriage.

Posted by: michael | Dec 3, 2008 11:44:09 PM