Will Gay Marriage Become the Next Roe v. Wade?

Before joining the federal judiciary in 1980 and the U.S. Supreme Court in 1993, Ruth Bader Ginsburg got her start as a feminist Columbia University law professor and chief litigator for the American Civil Liberties Union's Women's Rights Project. Given that legal background, you probably wouldn't expect Ginsburg to criticize the Supreme Court's abortion-affirming 1973 decision in Roe v. Wade. But as the Associated Press reports, that's precisely what she did last week:

"It's not that the judgment was wrong, but it moved too far too fast," Ginsburg told a symposium at Columbia Law School marking the 40th anniversary of her joining the faculty as its first tenure-track female professor….

Alluding to the persisting bitter debate over abortion, Ginsburg said the justices of that era could have delayed hearing any case like Roe while the state-by-state process evolved. Alternatively, she said, they could have struck down just the Texas law, which allowed abortions only to save a mother's life, without declaring a right to privacy that legalized the procedure nationwide.

"The court made a decision that made every abortion law in the country invalid, even the most liberal," Ginsburg said. "We'll never know whether I'm right or wrong … things might have turned out differently if the court had been more restrained."

Answering historical "what ifs" can be a fun way to pass the time, but these comments from Ginsburg actually take on real weight in light of last week's decision by the 9th Circuit Court of Appeals striking down California's Proposition 8, which had amended the state constitution in order to forbid gay marriage. If UCLA law professor Eugene Volokh is correct that the Prop. 8 case is definitely "going up to the Supreme Court," the comparison to Roe v. Wade becomes more than just academic.

Let's say the Supreme Court hears the Prop. 8 case in the next year or so and Justice Anthony Kennedy continues his trend of voting in favor of gay rights by authoring a sweeping five-justice majority opinion recognizing a right to gay marriage in the 14th Amendment. This landmark decision would strike down all state-level bans on the practice, much like Roe did for abortion laws. Should proponents of gay marriage favor this aggressive approach or should they heed Ginsburg's warning about the political backlash from moving "too far too fast"?