Will Gay Marriage Have to Wait for Democracy to Catch Up?

Since Californians voted to enshrine discrimination against gay couples in their state constitution on Nov. 4, the varied strains of lamentation from San Francisco's chattering classes have risen to a choral swell. The success of Proposition 8, which banned same-sex marriage, gave rise to all manner of complaint: Black voters killed the right of gays and lesbians to wed! So did churches! So did black churches! So did the class of first-graders who naively attended their lesbian teacher's wedding before the baleful eye of the news media! So did the preening Gavin Newsom, who used his stature as the city's mayor to issue a now-infamous harangue that gay marriage was coming to the Golden State, "whether you like it or not."

Another voice has arisen amid these plaintive notes, and it is one that speaks not with regret, but with something close to icy assurance. Its argument is that democracy is no guarantor of civil rights, and that Prop 8's success is thus, in the long run, irrelevant. Disenfranchised minorities have never advanced their cause at the ballot box, but through the federal and judiciary mechanisms designed to ensure equal protection under the law. One need look no further for evidence than the 1954 U.S. Supreme Court Case Brown v. Board of Education of Topeka, which forced school desegregation upon unwilling states.
 

At first blush, this line of reasoning has much to recommend it. History does offer any number of court decisions and federal mandates that marked radical steps forward in the struggles of women and ethnic minorities. More fundamentally, the principle that Americans of all creeds and colors are protected against the tyranny of the majority is dear to anyone who bothered to pay attention in a high-school level U.S. history class. "The whole purpose of putting protections for minorities into the constitution is to protect them from the transient will of the majority," says Joseph Grodin, a professor at Hastings College of the Law. "And that's the whole purpose of judicial review."

There's just one problem with this argument: Many legal scholars don't agree. In his 1993 book The Hollow Hope, University of Chicago political science professor Gerald Rosenberg famously argued that courts have had far less sway than some activists imagine in advancing causes such as desegregation and women's rights. Indeed, a case can be made that courts have affirmed certain minority rights only after they have been widely accepted by the general public.

 

Will Gay Marriage Have to Wait for Democracy to Catch Up?
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