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The Supreme Court, marriage equality and the pace of change

Screenshot from NYTimes.com, March 26, 2013, 12:52 EST. (WNV)

Screenshot from NYTimes.com, March 26, 2013, 12:52 EST. (WNV)

The front page of the New York Times right now tells us that the Supreme Court justices are concerned about the timing of making sweeping decisions about gay marriage. The accompanying article frames these concerns mainly in terms of utilitarian speculations about the effects of marriage equality on the fabric of society:

But Justice Kennedy also spoke of uncertainty about the consequences for society of allowing same-sex marriage. “We have five years of information to pose against 2,000 years of history or more,” he said, speaking of the long history of traditional marriage and the brief experience allowing gay men and lesbians to marry in some states.

Justice Samuel A. Alito Jr. said the court should not move too fast.

“You want us to step in and assess the effects of this institution, which is newer than cellphones and/or the Internet?” he said.

There is also, however, a strategic question at stake. It has to do with the pace of change on behalf of a given cause and the effects of making change too suddenly, especially if it comes primarily through legal or legislative means. In a lecture last year, Justice Ruth Bader Ginsburg drew a comparison between marriage equality and the 1973 Roe v. Wade decision:

“It’s not that the judgment was wrong, but it moved too far too fast,” Ginsburg told a symposium at Columbia Law School marking the 40th anniversary of her joining the faculty as its first tenure-track female professor.

At the time of Roe v. Wade, abortion was legal on request in four states, allowed under limited circumstances in about 16 others, and outlawed under nearly all circumstances in the other states, including Texas – where the Roe case originated.

Alluding to the persisting bitter debate over abortion, Ginsburg said the justices of that era could have delayed hearing any case like Roe while the state-by-state process evolved. Alternatively, she said, they could have struck down just the Texas law, which allowed abortions only to save a mother’s life, without declaring a right to privacy that legalized the procedure nationwide.

While Roe v. Wade was a sweeping, sudden victory for advocates of safe, legal abortion, the backlash against it was largely responsible for galvanizing Christian conservatives into an organized bloc that, by the end of the decade, had reshaped the political map of the United States and helped hand Ronald Reagan the presidency. Now, after decades of political and cultural life heavily influenced by the anti-abortion movement, polls suggest that support for legal abortion is on the decline. Laws are being passed in states throughout the country that make legal abortion more and more difficult. It may be that Roe v. Wade, in the long run, created strategic challenges that advocates of legal abortion wouldn’t have to face if legalization had taken place more gradually.

The fight for marriage equality has proceeded quite differently. Gay rights advocates have organized for years on the level of popular culture, working to secure positive portrayals of gay couples on TV and in movies. They’ve fought against discrimination and encouraged gay people to educate their friends, co-workers and families. State by state, as a result, even while “defense of marriage” laws and constitutional amendments are being passed, the right for gay couples to marry is becoming more and more widely recognized, too. So is popular support for it, especially among the young. It seems clear which way the wind is blowing — but a drastic intervention before the culture is ready could change that.

A modest victory in the Supreme Court right now might actually be better for equality advocates than an immodest one. But, for issues with such dire consequences as the legal recognition of marriage and safe abortion, patience is a luxury that not all of us can afford.