Brown or Backlash?

The Supreme Court’s agreement to hear two same-sex marriage cases has created a sort of solemn expectation that the Big Moment may be about to happen on LGBT rights: a landmark decision that like Brown v. Board of Education changes everything forever. That expectation, of course, is based far less on any signals from the Supremes than from the unmistakable shift in public opinion on the subject, graphically demonstrated by the unprecedented victories for marriage equality at the polls on November 6 .

At TNR, Linda Hirshman draws from the precedents of the civil rights and women’s movement to warn that legal acknowledgements of big social changes occur according to their own timetable. It’s not at all certain, she says, that the time is ripe for a landmark decision by this particular Supreme Court, which is what one case, the challenge to California’s Prop 8, is designed to produce:

Starting in 1974 with the campaign against the criminal sodomy laws, the gay legal movement methodically assembled an incremental strategy, patterned on the racial and gender models, for dismantling the structure of law that marginalized and demonized their sexual relations. In 1991, when Hawaii unexpectedly considered legalizing gay marriage, the same institutions and the same players simply morphed into the marriage movement.

The lessons the gay litigators learned from the racial and gender civil rights movements led them to consider the federal courts in general and the Supreme Court in particular with extreme caution. When superlawyers David Boies and Ted Olson brought the head-on challenge to California’s antigay Prop 8 in 2009, they broke with this convention, and were heavily criticized for it. The ACLU’s Matt Coles called the suit a long shot and the marriage director for Lambda Legal said it was “risky and premature.”

A lot has happened in the three short years since the Prop 8 suit was filed. And as Hirshman notes, much of the groundwork for a more direct challenge to discriminatory laws has indeed already been laid by previous litigation. But it’s premature to celebrate:

The closest case to the Boies-Olson litigation in the women’s movement – Roe v. Wade — triggered a four decade backlash. Once before the gay movement overplayed its hand ever so slightly with the Court and got a terrible decision upholding the criminal sodomy laws. Gays almost won the first sodomy case; the decision in Bowers v. Hardwick was only 5-4, so it was hardly a foolhardy risk. And yet, it does make you shiver.

Of course, certiorari is not destiny. The Court could still weasel out of the Prop 8 decision by ruling that the case had technical problems with who can defend a law when the govern and attorney general have bailed. And then it could affirm the conservative premise of the DOMA case that Congress can’t withhold federal benefits from marriages some states have blessed. A direct constitutional challenge is coming anyway, but in constitutional litigation, as in marriage proposals, sometimes timing is everything.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.