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Best Of Tnr 2008: Justice Delivered Or Delayed?

Before California's Proposition 8 passed, banning gay marriage in the state, Jeffrey Rosen and Richard Just debated the California Supreme Court's decision to protect gay marriage. Though both support gay marriage in principle, Rosen argued that the court's legal reasoning was murky and that its decision could lead to a public backlash:

The California justices combatively declared that they didn't care if their decision was unpopular or even repudiated: "The Court should review individual rights questions, unabated by its judgment about whether a particular result will be subject to criticism, hostility, or disobedience." But Michael Klarman of Harvard Law School, who is writing a book on constitutional backlashes against judicial rulings, argues that the Massachusetts gay marriage decision in 2003 may have cost John Kerry the last presidential election by increasing social conservative turnout in swing states, like Ohio, whose ballots included initiatives to ban gay marriage. Those initiatives passed by overwhelming margins: Before the Massachusetts decision, only four state constitutions defined marriage as a union between a man and a woman; today, 26 state constitutions have gay marriage bans. During the 2004 election, Klarman concludes, opposition to same-sex marriage also provided the margin of victory for Republicans in closely fought Senate races in states like Kentucky and South Dakota.

Just defended the decision:

The California Supreme Court did not rule in a vacuum. For one thing, its decision comes in the midst of a generation-long shift in the way Americans view homosexuality. What was once viewed as a mental disorder is today widely recognized as a normal human attribute. More concretely, the court did not act in a political vacuum. The legislature has twice passed bills to legalize gay marriage, and one of the state's largest cities had been performing gay marriages before the courts ordered it to stop. What the California Supreme Court was doing last week was not judicial imperialism. It was simply taking a moral consensus that is clearly emerging, and applying it to the state's constitution.

Click here to read the rest of Rosen's argument.

Click here to read the rest of Just's argument.