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.