CT Blue

We got a bit of good news out of the Supreme Court yesterday, proving among other things that race remains the final frontier in this country. Who would have thought that the Supreme Court would protect gay marriage one day after reinstating Jim Crow.

Some folks are disappointed that the court ducked the chance to make gay marriage a constitutional right, but I’d like to argue that it might have been a good thing, particularly because the effect of the DOMA ruling is that any gay couple that likes can come here to Connecticut, get married, spend some money here, and then go back to where they came from and have their marriage recognized by the federal government.

Here’s the argument. I will assert without citation, because I think most would recognize that I’m right, that legislative acts are more readily accepted by the populace at large than judicial fiat; particularly federal judicial fiat; that state legislative acts are more readily accepted than federal legislative acts, and that state court fiat is more readily accepted than federal judicial fiat.

Consider the abortion issue. I recall distinctly that New York legalized abortion prior to Roe v. Wade, and I see here that a couple of other states did as well. It is quite possible that other states would have followed. As the right to a safe legal abortion became gradually more widespread, from the ground up, so to speak, it might very well be the case that it would not have become the divisive issue it remains. The Supreme Court cut off that evolutionary process, giving the abortion foes a rhetorical cudgel they would not have, had legalization emerged from the state legislatures, or even the state judiciaries.

There are a lot of reasons that this argument might be wrong in the case of abortion, but I would argue that it is easier to make the case that gay marriage will continue to spread and that it will become ever more acceptable, until half of the hold out states (those saddled with Bush era bans on gay marriage) would be happy to have the Supreme Court invalidate their bans. The other half, and we know where they would be located, would stand alone against a country in which the institution was widely accepted. Even they would begin to feel some pressure to catch up with the rest of the country. A company looking to relocate to Texas might think twice, for instance, if it meant subjecting its gay employees to an environment in which their marriages were not respected.

At that point, a Supreme Court decision requiring same sex marriage would be relatively non-controversial. It might take a few more years, but the upside is that it removes the issue as a hot button that the right can press for generations. It makes the process look far more legitimate; as indeed it would be. Evolution on the abortion issue might never have happened, but it seems pretty clear that we are evolving rapidly when it comes to gay rights. 10 years ago the Republicans were putting anti-gay initiatives on the ballot in order to turn out their base; now they are putting rhetorical distance between themselves and the anti-gay movement because it is becoming a loser issue for them. The gay-rights side is now winning statewide initiatives and that process will only accelerate as more citizens of Fox Nation are lowered into the ground. There is far more support for gay rights than for abortion rights, and much of the opposition is relatively apathetic. The more the movement is rightly perceived as emerging from the states, the easier the transition will be.