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.

Update:

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.