Court decisions interpreting the Constitution can intersect social reform movements at various points in their evolution. Sometimes courts take dominant social mores, convert them into constitutional commands, and then use them to suppress outlier practices in a few recalcitrant states. When the Supreme Court declared in 1965 that the Constitution protects the right of married couples to use contraceptives in the privacy of their own bedrooms, only two states in the country — those with the largest percentages of Catholics — had laws infringing on that right. When the Court in 2003 ruled unconstitutional state laws that criminalized sodomy between consenting adult homosexuals, only thirteen states still had laws on the books criminalizing sodomy, only four of them explicitly targeted homosexual sodomy, and no state actively enforced such a law. Court decisions such as these tend to be supported by public opinion and therefore are unlikely to generate much political resistance.
Other judicial interpretations of the Constitution divide the nation roughly down the middle. When the Supreme Court in 1954 declared public school segregation unconstitutional, twenty-one of the nation's forty-eight states had laws either commanding or authorizing such segregation, and opinion polls showed that Americans were almost evenly divided in their views of the practice. Similarly, when the Court ruled in 1973 that women have a constitutional right to abortion, nearly equal numbers of Americans were on either side of the controversy.
Less frequently, constitutional rulings fly in the face of dominant public opinion. When the Supreme Court ruled in the early 1960s that state-sponsored prayer in public school violates the Establishment Clause, polls showed that roughly 70 percent to 80 percent of the country disagreed. Similarly, a sizable majority of Americans differed with the Court's 1989 and 1990 rulings that the First Amendment protects the right to burn the flag in protest.
Even though the Court occasionally intervenes against dominant public opinion, the justices are never truly at the vanguard of a social reform movement. They are too much a part of their culture and historical moment to interpret the Constitution in ways that would strike most Americans as bizarre.
Before 1950, the Court would not have dreamed of invalidating public school segregation. A decade before Roe v. Wade, the justices would have thought it absurd to suggest that the Constitution protects a right of abortion. Ten years before the Court provisionally invalidated the death penalty in Furman v. Georgia (1972), almost nobody could have imagined a day when the Court would take seriously the argument that capital punishment is unconstitutional. On each of these issues, public opinion changed so dramatically in just a decade's time that previously inconceivable judicial rulings suddenly became possible.
When the Court intervenes to defend a minority position or even to resolve an issue that divides the country down the middle, its decisions can generate political backlash, especially when the losers are intensely committed, politically organized, and geographically concentrated. In the short term, Brown v. Board of Education (1954) retarded racial progress in the South and radicalized southern racial politics, advancing the careers of extreme segregationists such as Bull Connor and George Wallace. In the face of rapidly rising crime rates, Miranda v. Arizona (1966) facilitated the election of Richard Nixon to the presidency in 1968 on a law-and-order platform. By threatening to extinguish the death penalty, Furman produced a dramatic resurgence in public support for it and inspired thirty-five states to enact new death penalty laws within the next four years. Roe v. Wade (1973) generated a politically potent right-to-life movement that helped elect Ronald Reagan president in 1980 and has significantly influenced national politics ever since.
This book is about same-sex marriage litigation and the political backlash that it has produced. In the 1960s, little organized gay rights activism existed, police routinely raided gay bars, and the U.S. government would not hire open homosexuals or permit them to serve in the military. At that time, the idea of same-sex marriage would have struck most Americans as facetious. In the early 1970s, in the midst of a burst of gay activism unleashed by the Stonewall rebellion, several same-sex couples sought marriage licenses and brought lawsuits when their requests were denied. Courts did not take their arguments very seriously, casually dismissing such claims.
The gay rights movement made dramatic progress in the 1970s and 1980s on issues other than gay marriage, which itself was of little interest to most gay activists. Around 1990, partly because of the AIDS epidemic, the issue of legal recognition of same-sex relationships became more salient to the public and more important to gay activists. By the 1990s, at least a few judges, in states such as Hawaii and Alaska, were willing to take gay marriage seriously, even though a decisive majority of Americans remained strongly opposed. A ruling by the Hawaii Supreme Court in 1993 that strongly implied that same-sex couples had a right to marry unleashed a powerful political backlash across the country. Within a decade, more than thirty-five states and Congress passed laws to "defend" traditional marriage.
In 1999, the Vermont Supreme Court ruled that same-sex couples were entitled to all the legal rights and benefits of marriage, if not the formal title. Then, in 2003, the Massachusetts Supreme Court became the first in the nation to squarely rule that gay marriage was constitutionally protected.
These rulings also generated political backlashes. Civil unions fast became the dominant political issue in Vermont in 2000, and many legislators who had voted in favor of them lost their jobs. After the Massachusetts ruling, more than twenty-five states passed constitutional amendments banning gay marriage, and the issue figured prominently in the 2004 elections, possibly even altering the outcome of that year's presidential contest. In 2010, three justices on the Iowa Supreme Court were defeated in retention elections because they had ruled in favor of gay marriage the preceding year.
Gay marriage litigation may also have distracted attention from other items on the gay rights agenda, such as federal legislation forbidding employment discrimination based on sexual orientation. In addition, by situating other gay rights reforms against the backdrop of same-sex marriage, such litigation may have rendered them more controversial than they otherwise would have been.
Yet gay marriage litigation has also had several beneficial consequences for the gay rights movement; political backlash has not been its only material effect. By making same-sex marriage a salient topic, these rulings have forced Americans to discuss and form opinions about a social reform that previously would have struck most of them as incomprehensible. Judicial rulings in favor of gay marriage also inspired gays and lesbians to greater activism and converted many of them who previously had been lukewarm on same-sex marriage into enthusiasts. By enabling thousands of gay couples to marry, such decisions also put a public face on the issue, exposed millions of Americans to married same-sex couples, and enabled gay activists to refute predictions by conservatives of the deleterious consequences that gay marriage would produce. By causing other forms of legal recognition of same-sex couples such as civil unions to seem less radical by comparison, judicial rulings in favor of gay marriage also increased public support for compromise positions.
From From The Closet to the Altar by Michael Klarman. Copyright 2013 Oxford University Press. Excerpted by permission of Oxford University Press.