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DISPUTATIONS: Learning From Prop. 8 (Part Three)

In a major setback for gay marriage advocates, California voters passed Proposition 8 last Tuesday. And since then, TNR's managing editor Richard Just and TNR's legal affairs editor Jeffrey Rosen have been debating the appropriate lessons to draw from the defeat. Read Rosen's opening argument here and Just's first reply here.

Dear Richard,

Many thanks for your thoughtful response. But just to be clear: I’m not arguing that judges should crudely follow the polls, or that courts are supposed to do nothing more than predict and ratify public opinion. Instead, the argument--developed here--is that, when the constitutional arguments for judicial intervention are ambiguous, uncertain, and intensely contested, judges should defer to the political branches.

In my view, gay marriage, like abortion, is one of those areas. The Supreme Court was right to strike down bans on interracial marriage in 1967 because the only plausible social meaning of those bans was to degrade black people and to promote white supremacy. By contrast, the arguments on behalf of gay marriage are less clear. Although bans on gay marriage are (literally) a kind of sex discrimination, it’s not intuitively obvious to most people that the bans should be viewed as an effort to promote male supremacy. Nor has the immutability of a trait, which you emphasize, ever been necessary or sufficient for heightened constitutional protection: Religion isn’t immutable, even though it’s considered a suspect classification, while height is immutable, but short people aren’t a protected class. Finally, some people--including some prominent gay commentators--support civil unions as a separate but genuinely equal alternative to gay marriage. They’re not motivated by animus, they insist, but instead by a desire to preserve a traditional definition of marriage--hardly an argument that would pass the laugh test if race were involved. For all these reasons, I haven’t been convinced by the constitutional analysis of three state Supreme Court decisions imposing gay marriage by judicial fiat. But I acknowledge that the arguments are close (like all constitutional arguments in tough cases), and for that reason, if the California justices’ vision of equality had been endorsed, rather than repudiated, by the people, I would have viewed the decisions as legally shaky but constitutionally prophetic.

On strategy: Given the fact that the California legislature had already tried to recognize gay marriage (despite the Governor’s veto), I suspect that that gay people in California as a whole would have had the right to marry more quickly if the political process had taken its course. Repealing Prop 8 will be more difficult, given the mobilization of well-funded anti-gay marriage forces from around the country. (The pro-choice movement learned the same lesson after Roe v. Wade.) I wonder, for example, whether 70 percent of African American voters would have turned out to oppose a legislative, rather than a judicial, declaration of gay marriage: It’s the undemocratic character of judicial activism that provides such a rallying cry for opponents. For the same reason, think about the difficulty of repealing the various initiatives, laws, and state constitutional amendments that were passed in response to the Massachusetts and California Supreme Court decisions--from the state bans on gay marriage to the Arkansas initiative, passed last week, that forbids adoption by unmarried couples. Once again, the difficulty will be compounded by the mobilization of national anti-gay rights forces, such as the Church of the Latter Day Saints--social conservatives who have otherwise been marginalized in the age of Obama but now are focusing their political energies on a single issue.

What’s the best way for gay marriage supporters to build political support for their cause? That answer is above my pay grade, but as the social conservatism of blacks and Hispanic voters suggests, it wasn’t enough for California voters to see the reality of gay couples in meaningful marriages. This suggests the challenge, in the short term, is greater that many gay marriage supporters hoped. At a Yale Law School conference on the future of reproductive rights in October, Pam Karlan of Stanford predicted optimistically that the gay rights movement was doing better than the pro-choice movement because “gays have come out of the closet” while “women who’ve had abortions have gone back in the closet.” The third of American women who have had abortions, she suggested, should consider discussing their experiences for the good of the movement as a whole.

It seems unsettling and illiberal for a political movement built on the right to privacy--which was never a good metaphor for abortion rights--to demand that women sacrifice their privacy for the cause of ideological solidarity. But more broadly, Karlan exaggerated the current backlash against Roe and understated the backlash to the gay marriage decisions. When Roe was decided, two thirds of the country supported the right to choose abortion early in pregnancy--a percentage that remains virtually unchanged today. Most of the backlash against Roe focused on restrictions on later term pregnancy, which national majorities supported and the Supreme Court eventually permitted. By contrast, national majorities still oppose gay marriage--at least until the next generation of more tolerant voters come of age. In other words, the pro-choice movement is actually doing better than the pro-gay marriage movement at the moment because relevant majorities support choice early in pregnancy but oppose gay marriage. This political reality reflects deeply felt moral views that can’t be changed, at least in the short term, by demanding that gays and lesbians--or women who have had abortions--testify about their personal experiences. And it suggests that the future of gay marriage will be determined not by judicial activism but by demography.

Last word to you, with many thanks for another fine discussion.

Best regards,


Jeffrey Rosen is the legal affairs editor for The New Republic.

Click here for Jeffrey Rosen's original argument.

Click here for Richard Just's rebuttal.