THE BLOG

Gay Marriage: The Risks of Winning in Court (Part 2)

02/27/2013 11:50 pm ET | Updated Feb 02, 2016

I recently wrote that a risk of taking Proposition 8, California's voter-enacted gay marriage ban, to the Supreme Court is not only that a loss would be a legal and political setback, as others have noted, but that a victory would feed a backlash. I cited the history of school desegregation and affirmative action, the fall and rise of the death penalty, and Proposition 8 itself, which was a voter reaction to a prior state-court victory.

Here I speak of the alternative to litigation: the political activity of educating and convincing people through the media and in our workplaces, congregations and neighborhoods. It is more painstaking and requires greater courage, effort and patience, but I think it will be more effective in what the earlier piece called the "long, multifaceted battle not only for equality under the law but for ending the status of 'demeaned other.'"

How Did We Come So Far So Fast?

We are at a place where court victories on the gay-rights front are even possible because of political and social action. Many of us still remember when few people, gay or straight, questioned the assumption there was something wrong with "deviants," and when most straight people thought there was something fundamentally different about gay people. But things began changing with the movement sparked by the 1969 Stonewall riots protesting police raids on a New York gay bar. Gay people soon began speaking out in all kinds of day-to-day settings. Straight people began to learn about friends, family members and colleagues who were gay.

2013-02-22-FlagrantConduct.jpgIn 1986, when a majority of Americans still supported the continuing criminalization of sex between gay people, the Supreme Court upheld it. As Dale Carpenter explains, by 2003, developments in society at large had created a reversal in pubic opinion and resulted in a Supreme Court whose justices had openly gay clerks and heard gay lawyers argue major business cases. In that year a 6-to-3 majority held, in Lawrence v. Texas, that the Constitution had been wrongly interpreted just 17 years earlier. Even so, according to materials cited in Carlos Ball's study on lessons that Brown v. Board of Education holds for marriage-equality advocates, Lawrence, and the resulting conservative criticism, produced a significant (but temporary) reversal in pubic opinion on that issue and may have contributed to 2004 Republican victories. I think the timing of that suit was probably appropriate in the long run, but, if so, it was only because the political groundwork had been laid.

So I don't mean to oversimplify. There are situations, perhaps including Lawrence, where a court battle is a good way to reach the public and complements a political strategy or secures its gains. Sometimes the need to counter some harm is so urgent that, if judicial relief can be found, so much the better. Normally, though, if the law is on one's side, typically there was enough of a political consensus to create the favorable legal rule, at some point at least.

"Wedge Issues": The Bigger Picture

There is a broader context for all of this, although if I were a gay person who could not marry his partner or receive federal spousal benefits, I might have trouble giving it much weight.

As Thomas Frank has shown, Republicans use the divisive "social issues" of homosexuality, abortion and even gun control to distract huge numbers from what their pro-corporate policies do to the middle and working classes. I would add that contention over these questions serves the same purpose for many Democrats. If they are in progressive-leaning districts, they can use their liberalism on those matters to cover what they allow on energy and the environment, the military, labor law, food and farm issues, taxing, spending and economic policy.

Most non-gays who support gay rights -- and surely a goodly percentage of gays as well -- want very different policies on each of these fronts. We want social justice in all its forms, as well as peace, sane environmental choices and the reordered priorities of a caring society. To achieve such a program, sooner or later we will have to build a new kind of grassroots-based party that is focused not on elections but on educating, uniting, organizing and empowering "the 99 percent" and working for its genuine interests. One of the many ways it will differ from the dominant parties is that it will support dialogues that would permit faster progress and consensus on the wedge issues with which the major parties distract us.

Some of this could be modeled on the work of groups like Justice for All, which creates respectful conversations around abortion, and Free Press, which builds right-left coalitions to defend internet neutrality. When I was in high school my mother joined the Panel of American Women. They provided panels composed of a white Protestant woman, an African-American woman, a Jewish woman, and a Catholic woman to appear before church groups, civic clubs, PTAs and the like, where they described their personal experiences with prejudice and how it affected them and their children. Stereotypes dissolved as listeners learned to see people from other backgrounds as human beings like themselves.

Lacking a party that would use these and many other tools to unite the majority on all the issues that affect it, the litigation route is tempting for any minority oppressed by society at large. Having to work separately on the various problems severely hamstrings us: Gay activists must work nearly alone on gay issues, peace activists on militarism, housing activists on foreclosures, civil rights and justice-system activists on how we decimate minority communities with massive, lengthy incarcerations, and so on.

I've written elsewhere about the imperative for unifying these campaigns in a new kind of party and shared some thoughts on how to do so, and it is frustrating to see "the 99 percent" so unnecessarily disempowered. But we are where we are, and I respectfully submit that the slowness and difficulty of raising public awareness do not excuse us from carefully evaluating whether short-term gains in the courts will be at the expense of our long-term struggles.