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DISPUTATIONS: Learning From Prop. 8

Why over-eager judges don't help the cause of marriage equality.

In a major setback for gay marriage advocates, California voters passed Proposition 8 on Tuesday. Over the next couple of days, TNR's managing editor Richard Just and TNR's legal affairs editor Jeffrey Rosen will be debating the appropriate lessons to draw from the defeat. Rosen kicks things off below. (Click here for Richard Just's response.)

Dear Richard,

In our last dialogue on gay marriage in May, I expressed concern that the California Supreme Court’s decision to impose gay marriage by judicial fiat might trigger a backlash that would overturn the decision by popular initiative. Now that the California anti-gay marriage initiative has passed, I take no pleasure in seeing that prediction vindicated. With their overreaching, the California justices have set back the cause of gay marriage across the country. I have students and friends who were married in California since June, and who returned to the state to fight against the initiative. They’re understandably devastated that a basic right could be declared by the courts and then repealed by their fellow citizens.

The vote was close, and if it had gone the other way, I would have been happy to admit I was wrong and the California justices were right. In cases involving the culture wars, constitutional adjudication is often a test of how deft judges are at predicting what public opinion will accept. Brown v. Board of Education was celebrated in 1954 not because it was heroically counter-majoritarian but because it was popular with 54 percent of the country. Especially in cases where the constitutional arguments in favor of judicial activism are hotly contested, judges have to be especially careful not to take positions that relevant majorities will intensely resist. If they guess right, as the California justices did in 1948 when they struck down bans on interracial marriage, history hails them as prophets. If they guess wrong, as the California justices did this time around, they’re exposed as naïve and overconfident blunderers.

I’m surprised that the judges in the recent gay marriage decision have ignored the well-known lessons about constitutional backlash. In the California decision, the justices said, "The Court should review individual rights questions, unabated by its judgment about whether a particular result will be subject to criticism, hostility, or disobedience." Haven’t any of them read the history of the civil rights movement? Even more obtusely, the judges in the Connecticut gay marriage decision last month badly misstated the historical lessons of backlash that led to the failure of the Equal Rights Amendment. One reason the ERA failed is because, while it was being debated in the states, an over-eager Supreme Court made the amendment superfluous by declaring gender discrimination to be a “suspect classification” in the Frontiero case in 1973--precisely as the ERA would have done. Once ERA supporters realized they didn’t need a constitutional amendment, they stopped fighting, and then, two years later, a more conservative Supreme Court downgraded the status of gender discrimination below what the ERA would have protected--leaving women as a whole worse off.

The Connecticut Court, amazingly, twisted this cautionary tale about judicial activism into a celebration of judicial activism. “One of the lessons to be learned from Frontiero and its treatment of the equal rights amendment … is that, because support for particular legislation may ebb or flow at any time, the adjudication of the rights of a disfavored minority cannot depend solely on such an eventuality.” In fact, both the gender discrimination and gay marriage decisions teach the opposite lesson: The only way to put anti-discrimination bans on a firm footing is to build support for them in the political process, rather than encouraging judges to impose them ahead of schedule.

It’s instructive to compare the fate of the anti-gay marriage initiatives (which also passed in Florida and Arizona) with the anti-abortion initiatives, which failed in California and South Dakota. California voters refused to define a fertilized egg as a legal human being, and South Dakota voters rejected a measure that would have banned abortion in most circumstances. That’s not a surprise--support for near total abortion bans doesn’t reach a majority in even the most conservative states. And it suggests that now that pro-choice advocates have stopped hiding behind overly expansive readings of Roe v. Wade and have been forced to fight they’re battles in the political arena, they’re more than capable of defeating their pro-life opponents.

So here are the wages of judicial activism: After the Massachusetts decision declaring a right to gay marriage in 2003, eleven states passed anti-gay marriage initiatives, and today, 30 states now have constitutional bans. Given the polls showing strong support for gay marriage among younger people, the trend would almost certainly have gone in the other direction if state courts hadn’t been so quick to intervene. In light of the backlashes that over-eager judges have provoked, can anyone say that the cause of gay marriage--the cause of justice--is better served as a result?

Best regards,


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

Click here for Richard Just's response.