Why Liberals Shouldn’t Worry About a Backlash to the Same-Sex Marriage Ruling: An Interview with Harvard’s Michael Klarman

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tags: gay history, LGBT, gay marriage

Rick Shenkman, an associate professor of history at George Mason University, is the editor of HNN. His newest book is Political Animals: How Our Stone Age Brain Gets in the Way of Smart Politics (Basic Books, January 2016).

Michael Klarman is a professor at Harvard Law School and the author of From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (2012) and Brown v. Board of Education and the Civil Rights Movement (2007). He was interviewed by email. 

Question:  Is Obergefell, the Supreme Court decision legalizing same-sex marriage, likely to produce the sort of backlash that Brown v. Board of Education triggered in the white South?

Court decisions that move too far in advance of public opinion can generate dramatic political backlashes that end up retarding the progress of social reform movements.  Brown v. Board of Education led southern whites to mobilize extraordinary resistance to progressive racial change, radicalizing southern politics and electing to office extremist politicians such as Bull Connor and George Wallace, who correctly calculated that the violent suppression of civil rights protest would win votes.  (However, that violence, especially when directed at peaceful protestors and broadcast on television, produced a counterbacklash in favor of landmark civil rights legislation to suppress Jim Crow.)  Similarly, the Court’s provisional ruling against the death penalty in 1972 ironically generated tremendous support for capital punishment, as thirty-five states quickly enacted new death penalty statutes. Likewise, Roe v. Wades’s aggressive defense of abortion rights fostered a right-to-life movement that fundamentally reshaped American politics and arguably made abortion reform more contentious and resistant to compromise.  

Marriage equality rulings in Hawaii in 1993 and Massachusetts in 2003 similarly ignited potent political backlashes that culminated, respectively, in enactment of the federal Defense of Marriage Act and of constitutional amendments in more than twenty-five states barring same-sex marriage.  Yet Obergefell is unlikely to foment a backlash of equivalent dimensions—for several reasons. 

First, perhaps the most important factor in determining whether a court ruling generates backlash is whether it contravenes public opinion and, if so, how dramatically.  In 1993, when the Hawaii supreme court ruled tentatively in favor of gay marriage, Americans opposed it by a margin of at least three to one.  When the Massachusetts supreme court ruled squarely in favor of gay marriage in 2003, the country was still opposed by roughly two to one.  However, according to recent opinion polls, roughly 60 percent of Americans now support gay marriage. 

A second factor relevant to backlash is how directly a court decision impacts the lives of those who disagree with it.  It is hard to imagine how opponents of same-sex marriage can experience it as affecting their lives as directly and powerfully as critics of Brown and Roe believed those rulings affected theirs.  For white southerners committed to the preservation of white supremacy in the mid 1950s, telling them that their children had to go to school with African Americans was the end of the world as they knew it.  Similarly, opponents of abortion regard it as murder; thus, it is not surprising that critics of Roe are intensely committed to resisting it. 

What is the analogous interest for opponents of same-sex marriage?  Concededly, expanding marriage to include same-sex couples could eventually change the meaning of marriage for religious conservatives who currently understand it as an institution created by God to enable a man and a woman to propagate the species.  But that is an abstract and long-term effect.  It is hard to see how allowing the gay couple down the street who are already living together to get married will have a direct effect on opponents of gay marriage that is even remotely analogous to the effects that Brown and Roe had on the rulings’ opponents. 

Another factor that can be conducive to backlash is the regional division of opinion regarding a judicial ruling. In the South in the 1950s, whites overwhelmingly opposed Brown, and blacks were still largely disenfranchised.  This meant that southern politicians had strong incentives to aggressively resist implementation.  Orval Faubus became invincible in Arkansas politics by blocking enforcement of a federal court desegregation order in Little Rock in 1957, and George Wallace won a landslide gubernatorial victory in Alabama in 1962 by promising to stand in the schoolhouse door to preserve “Segregation Forever.” 

In some states—especially in the Deep South—opposition to same-sex marriage remains strong.  In 2004, Mississippi voters passed a constitutional amendment to bar gay marriage by 86 to 14 percent.  Eleven years later, opposition to same-sex marriage in that state remains over 65 percent.  Obergefell has, predictably, elicited criticism from some state politicians in the Deep South states, including Mississippi. 

However, that opposition has not elicited anything like uniform support from the national Republican Party, as it would have only a few years ago.  Three Republican U.S. Senators have endorsed same-sex marriage within the past few years.A brief supporting gay marriage was filed in the U.S. Supreme Court in 2013 by over 100 leading Republican politicians and party leaders, including the managers of the last two Republican presidential campaigns and a former chairman of the Republican National Committee.  Several prominent Republican fund-raisers—including, most notably, billionaire hedge fund manager Paul Singer—have endorsed gay marriage and contributed millions of dollars to Republican state legislators who have voted in favor of it.  These are extraordinary changes from 2004, when Republicans almost uniformly denounced gay marriage and used the issue to considerable political effect.  

A final factor relevant to predicting backlash is the ease with which a Court decision can be circumvented.  Brown was easy to evade because, while it barred states from segregating students by race, it left the placement of pupils in the hands of local education officials, who quickly devised schemes that ostensibly eschewed racial considerations but nonetheless managed to leave the schools thoroughly segregated by race.  For the better part of a decade after Brown, virtually no school desegregation took place.  Similarly, abortion opponents have whittled away at the right recognized in Roe by devising endless regulations of abortion clinics that, while ostensibly designed to protect women’s health, actually serve the purpose of making abortions more expensive and more burdensome to obtain. 

By contrast, circumventing a Supreme Court ruling in favor of gay marriage will prove nearly impossible.  The public officials charged with issuing marriage licenses have no discretion over granting them to couples that satisfy the legal criteria. 

While county clerks have no means of circumventing a broad marriage equality ruling, some may resign their positions in protest rather than comply with it, and a few may simply defy it.  But resignations probably will lead simply to replacements rather than to any lasting impediment to gay marriage.  Defiance likewise will probably cost people their jobs, because few state elected officials will choose to back them up, which would set themselves squarely in opposition to the Court.It seems exceedingly unlikely that any state governors will defy a marriage equality ruling in a manner analogous to southern governors’ standing in the schoolhouse door to block school desegregation a half century ago.

Court rulings also can be effectively nullified by discouraging beneficiaries from exercising their rights.  For a full decade after Brown, not a single school desegregation suit was brought in Mississippi because the threat and reality of physical violence deterred prospective litigants.  When the first such suit was finally filed in 1963, the lead plaintiff, Medgar Evers, was assassinated within a few months.  Similarly, violence against abortion clinics and the murder of several doctors who performed abortions has had some deterrent effect on the exercise of the constitutional right announced in Roe v. Wade

Although violence against gays and lesbians is certainly not a relic of the past, it is hard to imagine same-sex couples seeking to marry having to endure the same sort of violent intimidation that was routinely deployed against African Americans exercising their constitutional rights in the South during the civil rights era.  The country is different; the issue is different; and public officials almost certainly will not slyly encourage violence as extremist southern politicians such as Senator James Eastland of Mississippi or Governor Marvin Griffin of Georgia did a half century ago. 

For these reasons, Obergefell probably will not elicit anything like the political backlash ignited by other landmark Court rulings, such as Brown, Furman, and Roe

Question: What about the argument that the issue of gay marriage should have been left to the political process? 

One of the most interesting aspects of Obergefell is the way the conservative Justices chose to frame the issue in their four separate dissents: Each criticized the Court’s refusal to defer to democratic decision making on the issue of gay marriage.  Chief Justice Roberts accuses the majority of “stealing this issue from the people.”  Justice Scalia calls “attention to this Court’s threat to American democracy” and accuses the majority of seeing itself as “the Ruler of 320 million Americans coast-to-coast.”  Justice Thomas denounces the majority for putting the issue of same-sex marriage “beyond the reach of the normal democratic process for the entire Nation.”  Justice Alito says the majority’s ruling “usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.” 

These are strong statements, and they warrant a response.  Here are two.  First, the dissenters cannot really believe in unfettered democracy to the extent they profess.  Presumably, none of them thinks that we should turn over to democratic majorities the decision whether to establish Protestantism as the national religion, whether to authorize the enslavement of human beings, whether to racially segregate our schools, or whether to permit women to enjoy equal citizenship rights.  For much of our nation’s history, the Constitution was interpreted to permit each of these practices, meaning that their resolution was left to the democratic process.  The dissenters offer no criteria to explain why gay marriage ought to be resolved through democratic votes but slavery and racial segregation should not be. 

Second and more importantly, these democracy-loving statements are quite extraordinary coming from Justices who, at least as often as their liberal colleagues, refuse to defer to democratic decision-making.  The conservative Justices regularly invalidate decisions made by Congress, state legislatures, and even city councils and local school boards on a wide range of issues, including campaign finance regulation, gun control, race-based affirmative action, efforts to promote racial integration in public schools, and measures designed to protect the voting rights of racial minorities.  

The conservative Justices probably would defend themselves from charges of inconsistency by arguing that their interventions on such issues are grounded in more compelling interpretations of the Constitution’s text and history than is same-sex marriage.  But they are not.  The Justices who invalidate race-based affirmative action do so on the basis of a “color-blind” interpretation of the Constitution that has no grounding whatsoever in the text of the Fourteenth Amendment and is flatly inconsistent with its original understanding.  The Justices who have regularly voted to invalidate campaign finance regulation do so on the basis of an interpretation of the First Amendment that its framers would not have dreamed of and that seems to have occurred to virtually nobody for nearly the first two hundred years of the republic.  

Chief Justice Roberts denounces “judicial policymaking” on the issue of gay marriage.  Does he believe that the Court does less policy making when it bars a local school board from considering the race of students when attempting to promote integration in public schools or forbids a city council from mandating gun control in an effort to reduce violent crime?  In such cases, the conservative Justices take anything but the “modest and restrained” approach that the Chief Justice advocates on gay marriage. 

Justice Scalia calls the Court a “threat to American democracy” for daring to take the issue of same-sex marriage away from the American People.  Here’s a pop quiz: Which do you think is a greater threat to democracy: Court decisions that license the Koch brothers and Sheldon Adelson to spend hundreds of millions of dollars to influence the outcome of elections (rulings that 80 percent of Americans oppose, according to opinion polls) or a decision that authorizes two people of the same sex who love each other to get married (which 60 percent of Americans support). 

In his Obergefell dissent, Chief Justice Roberts says that “those who founded our country would not recognize the majority’s conception of the judicial role.  They after all risked their lives and fortunes for the precious right to govern themselves.”  The Chief Justice is right: The Framers had barely any conception of judicial review.  They would have been astonished—and probably aghast—at the idea of unelected, relatively unaccountable judges resolving so many of the nation’s most pressing social and political controversies—affirmative action, abortion, school prayer, the death penalty, campaign finance regulation, political gerrymandering, national health care reform, manual recounts of contested ballots in close presidential elections. 

We ought to have an open and robust debate in this country as to whether judges have too much power and whether unmitigated democracy adequately protects the interests of minority groups.  But that debate is not well served by opportunistic invocations of democracy by Justices who have consistently proved more than happy to trump democratic decisions on those issues where they do not approve of what the majority has decided. 

Question: Are you surprised at how quickly public opinion has changed on gay marriage? 

The changes have indeed been dramatic, though the shift is more accurately described as a steady but incremental shift over a period of decades than as a sudden and dramatic shift within just a few years.  Social scientists have shown that support for gay marriage increased at roughly an annual rate of 1 percent in the decade prior to 2004, and that rate increased to about 1 ½ to 2 percent in the years since. 

The critical factor behind this shift is the coming-out phenomenon, which over a period of decades has led to extraordinary changes in attitudes and practices regarding sexual orientation.  One of the factors that most powerfully influences support for gay equality is knowing someone who is gay.  As more gays and lesbians openly embraced their sexuality, more parents, children, siblings, friends, neighbors, and co-workers came to know and love someone who was openly gay.  Because few people favor discrimination against those whom they know and love, every gay person coming out of the closet has meant more supporters of gay equality.  In 1985, only a quarter of Americans reported that a friend, relative, or co-worker had told them that he or she was gay; by 2000, that number had tripled to 75 percent. 

The coming-out phenomenon has had a profound effect on popular attitudes towards homosexuality.  The number of Americans believing that gays and lesbians should have equal employment rights grew from 56 percent in 1977 to 80 percent in 1997, and the number believing that they should be legally permitted to adopt children rose from 14 percent to 50 percent over roughly the same time period. 

Such changes in public opinion were reflected and then reinforced by changes in the media and popular culture.  In the mid-1990s, some of the nation’s most popular situation comedies, such as Friends and Mad About You,began dealing with gay marriage—a virtually inconceivable development even a half-decade earlier.  In 1997, Ellen DeGeneres famously came out in a special one-hour episode of her popular television show, Ellen—the first time in television history that a leading prime-time character had come out as gay.  Forty-six million Americans watched, and Time put her on its cover with the headline, “Yep, I’m Gay.” 

Shifting attitudes on sexual orientation were also reflected in changes in law, business practices, and politics.  The number of states with laws forbidding discrimination based on sexual orientation in employment and public accommodations increased from zero in 1980 to eleven in 1998, and by 2000 a dozen states had expanded their hate crimes laws to protect gays and lesbians.  In 1992, not a single Fortune 500 corporation extended benefits to the partners of gay employees, but by 2000, well over a hundred of them did so.  In 2000, both of the leading candidates for the Democratic presidential nomination, Bill Bradley and Al Gore, supported civil unions for same-sex couples, repeal of the military’s policy of Don’t Ask, Don’t Tell, and a federal law forbidding employment discrimination based on sexual orientation. 

In just the last five years or so, Congress passed a federal hate crimes law covering sexual orientation and repealed Don’t Ask, Don’t Tell.  President Obama embraced gay marriage, and so did the Democratic Party and a majority of U.S. senators.  For the first time, voters in several states approved gay marriage, and in Wisconsin, they elected the first openly gay senator in American history. 

At the oral argument in Windsor, the 2013 case invalidating the Defense of Marriage Act, the Justices remarked upon the extraordinary changes afoot with regard to attitudes and practices involving sexual orientation.  Justice Antonin Scalia noted a “sea change” with regard to the states’ support of  same-sex marriage, and Chief Justice John Roberts observed that “political figures were falling over themselves” to endorse that reform.  While those Justices intended these observations as an argument for leaving the issue to resolution by the political process, the liberal Justices and Justice Kennedy were willing to translate such changes into constitutional law.  This is frequently how constitutional law has worked over the course of American history, as Justices have translated enormous shifts in attitudes regarding race, sex, sexual orientation, privacy, and religion into novel constitutional interpretations, which have generally won enthusiastic endorsements from the American People—if not immediately, then over time, as attitudes continued to move in the same direction as the Court’s decision had pushed them.      

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