Equal Rights on the March

by Brien Jackson

Stepping back and looking at the big picture for a second, it’s really astonishing to consider that, in the span of under a week, gay marriage has been legalized in Vermont and Iowa. The Iowa Supreme Court declared the states prohibition on gay marriage to be un-Constitutional last week, and the legislature has since indicated that they have no intention to pursue any action to nullify the decision, making them the only non-Northeastern state to currently have gay marriage on the books. Then, today, the Vermont legislature overrode the governor’s veto in overwhelming fasion, becoming the first state legislature to enshrine gay marriage in their state (the California legislature passed a bill to that effect twice, both of which were vetoed). This is somewhat monumental because it negates what, to this point, has been a typical “serious” right-wing criticism, which is that gay marriage has, thus far, required “judicial activists” to be put into place, something the right has regarded as anti-democratic. Of course, now that Vermont’s legislature has acted, the goalposts have been moved, and now, presumably, popular referendums will be required for anything to be “democratic” (never mind that Vermont has no referendum process).

To state the obvious, you expect this sort of thing from a right-wing (or, on a reversal, froma certain left-wing segment) whose less concerned about process, legitimacy, and law than getting what they want by any means necesary, but somewhat more bothersome has been this argument’s prevalence on the center-right, and in fewer case the center-left. Andrew Sullivan is a very good example. I certainly don’t want to impute sinister motives, because obviously this is an issue more near and dear to Sully than to myself, I simply don’t understand the logic. If you feel that the question is one of Constitutionality, and that the prohibition on gay marriage is un-Constitutional, then the only logical conclusion to draw is that the courts have an obligation to overturn bans on such. The only other logical conclusion is that bans on gay marriage are perfectly Constitutional. I suppose it’s also possible that Sully simply fears that court action will provoke a backlash against the movement and be a net-negative, but as Anonymous Liberal outlines, that just isn’t how istory has shown this sort of thing to work:

Today no one questions the correctness of the Perez decision from a legal standpoint. And that’s important to remember. It proves that just because a panel of judges is the first to recognize something, just because a judicial decision upsets prevailing societal norms, doesn’t mean it’s an example of improper activism or “legislating from the bench.” The first judge to say something is just as right as the last one to say it. Sometimes the right answer, from a constitutional perspective, is pretty clear; it’s just that no one has the courage to stand up and say it.

Years from now, the basic legal argument underlying the gay marriage decisions in Massachusetts, Connecticut, and Iowa will be utterly uncontroversial and will seem obviously correct to just about everyone. No one will think that these courts were “legislating from the bench” by stating such obvious truths.

I think this is important to keep in mind, especially when considering that the near term response to decisions like Brown vs. Board of Education was hardly one of universal acceptance. Riots erupted when black students tried to go to white schools, Southern governors and mayors showed up to physically block the doors of state schools, the National Guard had to be deployed to protect black students in Arkansas, Alabama, and Mississippi, etc. But 10 years later, the Civil Rights Act was passed by Congress. The year after that, the Voting Rights Act. And now we have a black President who carried Florida, Virginia, and North Carolina on the way to the White House, and the fundamental holding in Brown is understood to be so self-evident as to be downright shameful that it even had to come to that in the first place. Ultimately, I think, gay marriage will be much the same. More and more states will legalize, whether by legislative or judicial action, but some states will resist no matter what. The Supreme Court is ultimately going to have to step in, and they will, I think, ultimately strike down gay marriage bans across the country (and sooner than most people realize). This won’t make the holding any less correct, and any right-wing rendering of garments over it will not change the ultimate judgment of history, that the core finding in the decision will be so obvious, so uncontroversial, that future generations will view it much as we view Brown; a monumental moment and accomplishment but, at the same time, a national embarrassment that it ever had to come to that.