Nationwide same sex marriage could prove that Roe was the right decision all along

Just two years after a US supreme court ruling paved the way for a variety of rulings invalidating states’ same sex marriage bans, the court on Friday agreed to hear appeals to four subsequent lower court decisions holding that state bans on same sex marriage unconstitutional. If, as court-watchers widely believe will happen, Justice Anthony Kennedy joins the court’s four Democratic nominees to find that all state bans on same sex marriage violate the 14th Amendment, the United States could have a universal right to same sex marriage in time for wedding season.

The question is why we ever had to wait two years.

Supporters of a sweeping decision to force all states for recognize and reform same sex marriages – essentially making marriage a recognized federal right – are numerous on the left … except in the legal profession, where many have argued in favor of incrementalism. No less than liberal judicial icon Ruth Bader Ginsburg has an extensive history of expressing concern that the court went too far, too fast when it invalidated 46 state statutes banning or heavily regulating abortion in 1973 – and those concerns likely contributed to Ginsburg’s decision (along with her fellow Democratic appointees Elana Kagan and Steven Breyer) to join with Antonin Scalia and Chief Justice John Roberts to duck the same sex marriage issue by refusing to hear an appeal to California’s infamous Proposition 8. Their refusal to take the case meant that states, essentially, had to figure it out on their own, either in their legislatures or via lower courts.

In a nutshell, Ginsburg’s argument has long been that incremental change is preferable to more sudden, broad-reaching change, while other court observers have argued that policy changes announced by the courts tend to be less stable and widely respected than policy changes announced by legislatures.

But, with all due respect to Justice Ginsburg, the incrementalist critique of Roe v Wade has never made much practical sense, and it holds even less weight with respect to same sex marriage.

First of all, there’s no evidence that the judicial recognition of rights generate less respect from the public than the legislative recognition of rights. While Roe v Wade has always had its dedicated opponents, the ruling itself has long been very popular with the public at large.

Public sentiment in favor of same sex marriage is even starker evidence against the incrementalist thesis. Starting with Massachusetts, the recognition of same sex marriage rights in the United States has been driven primarily by judicial rulings and, though many pundits predicted that such supposed “judicial activism” would undermine public support for same-sex marriage right, they were proven spectacularly wrong. There’s actually been an extraordinary positive trend in favor of same sex marriage to the point that some scholars sympathetic to Ginsburg’s backlash thesis have been compelled to concede that it’s been proven wrong by the fact of same sex marriage rulings on the ground.

A supreme court opinion granting a national right to same sex marriage will still not be universally applauded, any more than Roe was. There will certainly continue to be pockets of state and local resistance, like thecounty courts in Florida that refused to issue marriage licenses and the threats by legislators in Texas and South Carolina to strip the pay of judges who rule in favor of same sex marriage.

But such resistance is not to be effectual in the long term, let alone serve as a reason for the court not to act. Even the most conservative federal judges are not going to allow state and local judges to have their salaries stripped for enforcing the law, and local clerks are not going to be able to refuse to implement federal law for long. A majority of states have already accepted their responsibility to comply with rulings legalizing same sex marriage with little resistance; the holdouts will not ultimately represent a significant barrier.

State bans on same sex marriage are discriminatory, they are unfair, they are irrational and they are wrong. As long as the 14th Amendment and its guarantee of the equal protection under the law remain in force, allowing fundamental rights to be abridged in some states but not others is unacceptable. Same sex couples in Alabama and Texas should not be denied fundamental rights that citizens in Massachusetts and New York and Iowa have been properly granted.

Politics is about conflict: waiting for everyone – or virtually everyone – to favor same sex marriage rights before the court does the right thing is impractical and inconsistent with basic constitutional guarantees. The time for incrementalism has long since outlived a usefulness that it never really had. It’s time for the supreme court to make gay men and lesbians truly equal citizens under the law.

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