02/15/2013 05:03 pm ET Updated Feb 02, 2016

Gay Marriage: The Risks of Winning in Court (Part 1)

Next month the Supreme Court will hear oral arguments on the constitutionality of California's gay marriage ban. When the court accepted the case, the San Francisco Chronicle's headline was "Jitters as Prop. 8 goes to high court." Author Joe Garofoli explained:

There has long been tension in the gay and lesbian community about the best political path to legalizing same-sex marriage. While some have urged going through the courts, others -- thinking the risk of a legal loss too great, too final -- have advocated fighting it out state by state at the ballot box.

As a straight person, I consider my right to weigh in on the issue somewhat limited. But I can offer an opinion, for what it is worth. And what I find missing from both sides of a thoughtful debate is concern about the risks of victory.

On other fronts, judicial successes that came too far ahead of public opinion slowed long-term progress by feeding a backlash. For example, as law professor Carlos Ball explained in a 2006 scholarly study focusing on the 1954 school desegregation case:

Brown v. Board of Education prompted a severe political and legal backlash... [P]olitical and legal backlashes are a foreseeable consequence of controversial judicial victories that require majority groups to reassess in fundamental ways the manner in which they have in the past treated and understood certain minority groups.

Similarly, in 1972, the Supreme Court invalidated the death penalty but left the door open for its re-enactment under supposedly clearer standards. This led to a wave of new death-penalty legislation. In many states it contributed to a long period where politicians riding tough-on-crime sentiment passed three strikes laws and continually broadened their death-penalty legislation. Executions themselves, having previously hit an all-time low, steadily increased.

The backlash was also was one of many factors (including the Civil Rights and Women's Movements moving away from political strategies and winning in the courts gains -- like affirmative action -- that much of the public was not yet ready for) that allowed the Right to stir up a general backlash against liberals and win rightward shifts in judicial appointments, to the point where equally-arbitrary death-penalty systems are allowed by courts that once struck them down. It took 30 years for the pendulum to begin swinging in a better direction again, and that happened through advocates educating the public, not litigating.

The current controversy is over California's Proposition 8, passed by voters in 2008. This itself was the reaction to an earlier judicial victory for gay rights, and it nullified a ruling that the right to marry was implicitly protected by the state constitution. Proponents of the litigation path filed suit in federal court, contending that the U.S. Constitution outlawed the California voters' action. After lower-court wins, the matter is now before the Supreme Court.

As Garofoli notes in his Chronicle piece, a 2009 memo by an alliance of nine reform groups argued against pursuing federal litigation:

W]e need to talk to our friends, family and neighbors, and help them understand why denial of the freedom to marry is wrong... We lost the right to marry in California at the ballot box. That's where we need to win it back. Reversing Prop 8 at the ballot in California will set a powerful political precedent and help change the national climate.

And, while only a bare majority of the public supports gay marriage, the public-opinion contest can be won. The numbers have steadily increased, and there were important victories last November (gay marriage legalized by voters in Maine, Maryland, Minnesota, and Washington State, first openly gay U.S. senator elected, and Arizona -- yes, Arizona -- elected the U.S. House of Representatives' first openly bisexual member).

The 2009 memo advocates political versus legal action by pointing to the risks of an eventual setback at the high court damaging not only the legal framework, but the political environment as well. I agree, but there is still more to the equation. This is about one piece of a long, multifaceted battle not only for equality under the law but for ending the status of "demeaned other," in Michael Lerner's phrase. When a majority of a nine-person court makes a decision that a very big segment of the population is not ready for, the latter -- agitated by those whose role in life is to agitate about the issue involved, highly disturbed by an outcome that conflicts with their beliefs and values, and scandalized by the patently undemocratic nature of what they feel has just been forced on them -- become less, not more, sympathetic to the cause at issue.

In places where anti-gay-marriage sentiment is still strong, what do you think will happen with hostility in the workplace and on the street in the face of five or six Supreme Court justices ruling that an 1866 amendment to the constitution now suddenly gives gays the right to marry? When the backlash against these things is strong enough, even the winning of the legal battle turns out to be short-lived, as the course of the death penalty showed.

The concluding part of this piece will recount how the reason we are at a place where court victories on the gay-rights front are even possible is because of political and social action. It will also situate the tactical debate within the broader context of the panoply of issues on which so many of us want social and political change.