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Gabriel Rotello

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Why a Supreme Court Marriage Victory Won't Spark a Backlash

Posted: 03/26/2013 11:45 am

Some pundits are predicting that we're in for a serious backlash if the Supreme Court legalizes gay marriage in all 50 states. And they're using the 1973 example of Roe v. Wade to make their case.

According to this analysis, one reason why abortion became such a burning issue over the past 40 years is that back in 1973 the states were having a healthy debate on the subject. A few had even legalized abortion and more were sure to follow. But the Supreme Court stepped in and cut off debate by suddenly legalizing abortion everywhere. If the Court had just allowed the states to keep debating, the argument goes, the backlash against abortion would never have become so fierce.

Today, we're being warned that the same might happen with gay marriage. The court might legalize it before conservative states are ready, turning it into an issue that galvanizes the right for decades. Perhaps we should hope the Court lets the legislative process take its course, even if that means that gays in many states won't be able to marry for generations to come.

The problem with this analysis is that gay marriage has already been legalized by the courts against the voters' wishes -- at least initially -- and no sustained backlash ever materialized. In fact, the opposite happened, again and again.

Consider Massachusetts, whose Supreme Court first legalized gay marriage back in 2003 against the wishes of a clear majority of voters. That ruling did indeed inspire a right-wing attempt for a couple of years to amend the state constitution. But it ultimately it fizzled and the issue died. When was the last time you heard anyone seriously challenge gay marriage in Massachusetts?

In Connecticut, the Supreme Court legalized gay marriage when only 39 percent of Connecticut voters were in support. But two months after the Court decision, instead of a backlash, that number had jumped to 52 percent. And a whopping 61 percent were against amending the state constitution to ban gay marriage, which is one way to measure a serious backlash. Ultimately the state legislature voted to legalize gay marriage and today it's a non-issue.

The most problematic state, from a backlash point of view, was Iowa, where the state Supreme Court legalized gay marriage in 2009. The next year three judges on that Court were targeted by conservatives, and voters kicked them out. So yes, that was a bit of a backlash. But right-wing attempts to amend the state constitution went nowhere and they're not going to -- Iowans now oppose such an anti-gay amendment by a whopping 56-38 margin. And just this February a new poll showed a plurality of Iowans now support gay marriage, 46 to 43 percent. If that's a backlash, bring it on.

And by the way, this backlash deficit goes beyond just gay marriage. On all sorts LGBT issues, where gays have turned to the courts for help and won against bitter opposition, the results have been a deafening....never mind.

For example, back in 1992 Colorado voters passed the anti-gay Amendment 2. In 1995 the U.S. Supreme Court overturned Colorado voters and ruled that Amendment 2 was unconstitutional. Anti-gay forces in Colorado went ballistic -- for about a minute. Then the whole subject quickly became an embarrassing non-issue, never to be heard from again.

Or consider the momentous 2003 Supreme Court decision that struck down anti-sodomy laws in the U.S. That ruling decriminalized homosexuality in every state where it was still illegal, including the most conservative states. It was the biggest gay rights victory in history, and anti-gay forces went nuts -- for about a minute. But when was the last time you heard of right-wingers seriously fighting to overturn Lawrence v. Kansas the way people still fight to overturn Roe? It's not even a plank in the Republican platform, much less as a real issue.

Ditto with Don't Ask Don't Tell, the law that banned gays from serving openly in the military. Conservatives were furiously opposed to repeal, but once they lost ....never mind.

Ultimately there's a simple reason why advances in LGBT rights become almost instantly non-controversial. Many people genuinely believe the sky will fall if gay people win. And then we win and the sky fails to fall on schedule. In fact, nothing happens. Or rather, the only things that do happen are good things -- we get treated more fairly, and our straight friends and families are happy about that.

So while I can't predict how the Supreme Court will rule in this case, history can confidently predict one thing: If the Court rules to legalize gay marriage in all 50 states, we won't see the beginning of some nasty national debate. We'll see the end of one.

 
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