Deciding When To Decide

The Supreme Court’s refusal to prevent Alabama from having to recognize same-sex marriages on Monday led to serious confusion at county courthouses around the state, and briefly thrust to the fore a constitutional dilemma that will likely be resolved this summer. Aside from presenting unique jurisdictional issues for lawyers to address, the situation in Alabama has underscored why political considerations about the readiness of the country for major social changes have had far too much influence on the constitutional debate over same-sex marriage.

The reason the fight over gay marriage has entered a confusing, possibly final stage is directly related to the Supreme Court’s unwillingness to wade fully into the debate. In 2013, the Court ruled the federal Defense of Marriage Act unconstitutional, but avoided addressing the constitutionality of state gay marriage bans. Last year, it had a chance to take a case to decide that very issue, but did not, because no federal circuit courts had upheld the bans. Shortly thereafter, the Sixth Circuit did just that, forcing the Supreme Court to take the case now before it. All of which brings up the question: Why was the Court so cautious in dealing with same-sex marriage?

Ostensibly, this caution came from historical experience. To take the most prominent example, former women’s rights lawyer and liberal Justice Ruth Bader Ginsburg has often noted that she thinks Roe v. Wade—the landmark 1973 Supreme Court decision that enshrined a constitutional right to abortion—was decided “too far, too fast.” Based on her analysis, the Court should have left the country to work out the abortion issue democratically, and by doing otherwise the justices provoked a backlash that has continued to the present.

As lawyer and journalist Lincoln Caplan points out in the New York Times, however, Ginsburg’s reasoning is simply wrong. In their book “Before Roe v. Wade,” Linda Greenhouse and Reva Siegel argue convincingly that abortion politics had already become contentious in the 1970s, spurred on by the Catholic Church, Richard Nixon’s opportunistic strategists, and liberalizing laws in states like New York. Given the razor’s edge on which abortion rights stood at the time, the idea that a decisive decision like Roe would necessarily was the sole provocation of a backlash is unlikely. In short, Roe v. Wade is less a tale of why courts should be cautious, and more an argument in favor of a judiciary willing to lead on issues of fundamental rights, even when public opinion is unclear.

Other historical examples, arguably more analogous to the current battles over same-sex marriage, lead to a similar conclusion. In 1968, the year after the Supreme Court legalized interracial marriage in Loving v. Virginia, Gallup found that fewer than 20 percent of Americans supported marriage between blacks and whites. Now, 87 percent do. If the Supreme Court had waited until the public mood had fully evolved, it might have still been in a constitutional and moral holding pattern until the mid-nineties.

Just as support for interracial marriage rose in the aftermath of Loving, gay marriage in Massachusetts is now quite popular, with 60 percent of residents approving. Here, however, the exact historical pattern is a bit more complicated. Before the Massachusetts Supreme Judicial Court became the first court to rule that a refusal to recognize same-sex marriages violated a state constitution, a Boston Globe poll found that 48 percent of residents supported legalizing gay marriage, and 43 percent opposed it.

In the immediate aftermath of the SJC’s 2003 decision, support dropped to 35 percent, and opposition rose to 53 percent. At first, these statistics would suggest that the SJC’s pro-gay marriage ruling caused the backlash predicted by Ginsburg. But today, of course, a Massachusetts resident opposed to gay marriage might as well be a Yankees fan or someone yelling, “J-E-T-S, Jets, Jets, Jets!” in Gillette Stadium. Why, then, the precipitous drop in support during the months after the case?

Politics.

Massachusetts lawmakers briefly considered passing a constitutional amendment to ban gay marriage and bickered over how to implement the SJC’s ruling, while the Catholic Church made its usual mischief and caused a temporary spike in the number of its members opposed to gay marriages.

Eventually, however, the Commonwealth granted same-sex couples full civil rights as the Court’s decision required, and it—along with much of the country—has yet to look back.

For the current Supreme Court, then, the lessons of history are clear. Contentious social issues will always bring with them political polarization, whether at the hands Nixonian operatives in 1972, segregationists in 1968, or religious activists in 2004. The courts, however, have the ability to throw the status quo firmly behind those fighting for a more just and equitable society.

Having already delayed on gay marriage, the Court is finally set to end the confusion that reigns in places like Alabama. Given waited for public opinion to evolve, and the now widespread support for same-sex marriage around the country, the justices have little excuse for offering anything but a wholehearted endorsement of marriage equality.

Nelson L. Barrette '17, a Crimson editorial writer, is a history concentrator in Winthrop House.