Should Gay Marriage Advocates Be Wary of the Supreme Court?

Back in February Supreme Court Justice Ruth Bader Ginsburg delivered a speech at Columbia University where she criticized the Court’s abortion rights-affirming 1973 decision in Roe v. Wade because “it moved too far too fast” and provoked decades of bitter political fighting. “It’s not that the judgment was wrong,” Ginsburg said, it was that the country wasn’t quite ready to accept a decision legalizing abortion in all 50 states. “Things might have turned out differently if the court had been more restrained,” she observed. As I noted at the time, Ginsburg’s comments on Roe might also apply to the issue of gay marriage, which the Supreme Court is likely to take on sometime in the next few years. Should gay marriage advocates try to postpone this looming Supreme Court fight and focus instead on first winning more victories at the state level?

At least one advocate of gay rights thinks so. Writing in The Los Angeles Times, liberal Georgia State University law professor Eric Segall makes the case for keeping the Supreme Court out of the gay marriage debate:

President Obama did the right thing last week by (finally) coming out in favor of marriage equality for all people. Gays and lesbians should have the same rights as heterosexuals to marry, and the president's explicit support should further that goal. But if the Supreme Court forces that change on the American people (through litigation over California's Proposition 8 or other cases), the probable backlash would be substantial and might well do more damage than good to the future of gay rights and other important causes.

I'm less convinced that a ruling in favor of gay marriage would spark a sustained Roe-style backlash. But either way, the board is set and the pieces are moving. A Supreme Court showdown over gay marriage seems increasingly inevitable.

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  • SIV||

    About time Reason,/i covered this gay marriage issue.

  • jacob||

    Maybe they'll give some attention to this chick from Alaska that folks have been talking about. What's her name again?

  • Eduard van Haalen||

    Whatever you think of gay marriage, this abortion theory of Ginsburg's is stupid.

    The problem with the Supreme Court and abortion isn't that they forgot to use salami tactics and legalize abortion over a couple decades rather than legalizing it all at once.

    The problem is that they legalized it.

    Before Roe, some states had legalized abortion and met with a backlash - the prolife movement was gearing up to fight the abomination - I mean, medical procedure - state by state.

    Ginsburg seems to think that prolifers just needed time to gradually get used to legal abortion. Well, they've had 39 years and still haven't gotten used to it.

    Maybe it's not just the timing and marketing that's the problem, maybe the problem is that they legalized the killing of unborn children.

  • Hugh Akston||

    Cool story bro. How's that righteous anger working out for ya?

  • Eduard van Haalen||

    I forgot - righteous anger is reserved for cop threads.

  • AuH2O||

    Yeah, it is. It's not like we have a bunch of righteous anger, laying around, for you to use at the drop of a hat.

  • BigT||

    Ginsburg is correct, but for the wrong reason. SCOTUS should not have taken the case. It's not a federal issue.

  • Hugh Akston||

    Whoa whoa whoa. Are you suggesting that government fiat doesn't immediately solve social problems?

    What about racism and poverty? Pretty sure those got fixed in the '60s.

  • ||

    Only about 90% of it Hugh, and that was in the first year of implementation. That last 10%...they've been stretching that one out for a few decades. But the prestige will be worth the price of admission.

  • AuH2O||

    I've never really studied the legalization of abortion in other countries. How did it work for, say, England?

    I have heard they have a small pro-life movement, but nothing on the level of the U.S.

  • Virginian||

    I've noticed Europe is generally a bit less stringent on the whole "lot's of innocent people dying" thing.

    I hate abortion as a political issue more then most, because it's that issue where collectivist scum wrap themselves in the mantle of freedom because it happens to be the one issue where they can somewhat credibly claim the pro-liberty side of the issue.

  • Eduard van Haalen||

    Then reclaim the issue from "collectivist scum." Be a stronger prolife voice than they are - show them how it's done!

  • DJK||

    Not more of this shit. There are legitimate arguments to be made both for the pro-life camp and the pro-choice camp. And both can find a basis in arguments from individual rights. As they can from more collectivist mentalities as well. There is no "statist" versus "libertarian" divide on abortion.

  • VG Zaytsev||

    Yep,

    It really comes down to a question of when human beings attain human rights. My own view is that it's somewhere between viability outside the womb and when a fetus begins to move on it's own accord aka quickening. But I recognize that that is as arbitrary as any other point of development.

  • ||

    That's why we shouldn't make arbitrary decisions like this at all. The burden of proof should be on the side that says a person is not entitled to non-agression.

  • VG Zaytsev||

    Same difference.

    It comes down to the question of when a person is entitled to non aggression protection.

    And on that question there is no logical difference between a five month old fetus and a ten month old infant.

  • DJK||

    Why should the Supreme Court decision depend on the sentiments of the populace? It should be a straight Constitutional issue.

  • Sudden||

    My hope is that the case, if the court accepts it, is determined solely on the basis of a Lochnerian right to contract.

    In speaking with some gay friends, this would give them fits because for many of them (though not all) it's less about the issue of being able to marry itself and more about the idea of societal acceptance, as if being given the grant of government or approved by society somehow makes the whole affair more appropriate or noble. I fail to understand that as I'm generally of the belief that the less you have in common with the rest of humanity, the better off you are.

  • Eduard van Haalen||

    If I had to guess, I would expect that some gay people got treated really badly by their parents and want a government blessing on their relationships as a means of vindication.

  • DJK||

    Not at all. We can argue all we want about how government should not be involved in the business of marriage. But it is. And there are good reasons for gays to want to enjoy the same privileges that governments bestow on straight couples.

    Please note that a marriage at present is not a contract between two parties, but also includes state and federal governments in a role other than arbiter. Until that changes, all power to the gays to attempt to secure equal protection under the law.

  • Anonymous Coward||

    I'm generally of the belief that the less you have in common with the rest of humanity, the better off you are.

    Now, now, you're being awfully misanthropic. People will think you weren't properly socialized by the American school system and that you still possess some flicker of independent thought.

  • wareagle||

    President Obama did the right thing last week by (finally) coming out in favor of marriage equality for all people.

    proof that folks hear what they want to hear, rather than see what was done. Obama did not come out in favor of "marriage equality", he came out in favor of receiving campaign contributions from a group that threatened to strongarm his campaign, and did it just prior to going to Hollywood where he could pocket more money, but after the vote in NC, meaning he did not to do anything resembling political courage.

  • Eduard van Haalen||

    But...he's so dreamy!

  • Sevo||

    And he didn't flip-flop, he "evolved". 180*.

  • BMFPitt||

    On this issue, his true position is about as clear as Romney's is on anything. All we know for sure is what his advisers told him would be the most advantageous.

  • GroundTruth||

    Court decisions in support of gay marriage are an excellent case of winning the battle but loosing the war, or more specifically, a winning battle causing a lost war. Had the "Gay Marriage Now!" crowd not forced the issue in court (I'm thinking Massachusetts in particular) but rather worked incrementally on domestic partnerships, then civil unions, there would not be 40-some states in the Union with anti-gay marriage laws or constitutional amendments. It is twice as hard to overturn such laws or amendments, as it would have been to simply not have them enacted to begin with.

    Taking this to SCOTUS is a loose-loose proposition: either you loose at court and need a US Constitutional Amendment to fix the problem, or you win at court and so outrage the social conservatives that you wind up with a US Constitutional Amendment outlawing gay marriage.

  • DJK||

    I would be amazed to see the huge majority required to enact an Amendment of the Federal Constitution. The neo-cons can only wish they had such support.

  • BMFPitt||

    or you win at court and so outrage the social conservatives that you wind up with a US Constitutional Amendment outlawing gay marriage.

    They try this every year, anyway. Why would they suddenly stop getting crushed in Congress (not to mention the near-impossible task of getting 38 states on board) if SCOTUS did their job?

  • ||

    He obviously mean amendments to state constitutions.

  • GroundTruth||

    No, I was meant the US Constitution. 38 states is not that much of a hurdle when you look at the lopsided votes each time this has come up to a popular vote.

  • Peter H||

    2/3 of each house of Congress is. Even in 2004 when gay marriage was much less popular and a fed. amendment was being pushed by the President, it got nowhere fast. Marriage equality is now the position of one of the two major parties, and like it or not, article 5 gives either party an effective veto on any proposed amendment (since neither party ever dips below 1/3 in both houses).

  • Mickey Rat||

    What makes so many people think that the antonym of "win" is spelled "loose"?

  • GroundTruth||

    Sorry, but English orthography makes less sense than some SCOTUS decisions.

  • CougarFlirts_Com||

    No man or woman is worth your tears..CougarFlirts..c''om where I met my true love and i will marry with him next week,he is very handsome and gentle,Haha!!
    you may find your perfect partners..

  • Eduard van Haalen||

    No man or woman is worth your tears..why not a Dr. Who marathon instead?

  • fried wylie||

    Should Gay Marriage Advocates Be Wary of the Supreme Court?

    Shouldn't everyone?

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