Saturday, June 27, 2015

Why Marriage Equality Won.

The myth about the Supreme Court is that it impartially interprets the Constitution despite political pressure and public opinion. Nothing could be farther from the truth. The justices are a part of our society and are as influenced cultural change and political pressure as you or I.

The influence of cultural change is nowhere better illustrated than in the Supreme Court's sodomy rulings of 1986 and 2003. In Bowers vs Hardwick (1986), the Court upheld, in a 5-4 ruling, the constitutionality of Georgia’s sodomy law criminalizing oral and anal sex in private between consenting adults when applied to gay men and lesbians. In Lawrence vs Texas (2003), the court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws across the nation. What happened to the court in the intervening 17 years? It certainly did not become more liberal. The 1986 Burger Court was more judicially liberal than the 2003 Rhenquist court. What changed was the culture and its values. People felt that state and federal governments had no business in their bedrooms, and had become more accepting of  the LGBT community.

In addition to cultural change, there was political pressure. The Supreme Court has a stated role: to interpret laws according to the Constitution. But it also has an unstated role: to maintain stability. To make sure that society remains ordered and calm; to ensure that the rule of law prevails and the legitimacy of the government is upheld. If the population moves towards liberty, and it is too far ahead of the courts, there is a danger of instability and disobedience on the part of the people, which would undermine that legitimacy and authority. So, in terms of Civil Rights, these authorities are consistently seeing where they can stand firm on the way things have always been and where they must accommodate the public will. For instance, in the African American civil rights struggle against Jim Crow laws, the Supreme Court largely remained on the sidelines between the mid-1800s and the mid-1900s. When they did step-in, it was to maintain the current order. In their 1886 Plessy vs Ferguson ruling, the courts upheld that separate but equal facilities were constitutional. They only began ruling against racial segregation laws when there was a movement of African Americans prominent enough to challenge that status quo. It wasn’t until 1954, in the atmosphere of a healthy Civil Rights Movement, that the courts overturned Plessy, in Brown vs Board of Education. Legal change favoring liberty does not happen unless there is a concerted effort by a large enough population advocating for their freedom.


So why did Same Sex Marriage win? It was a historic combination of cultural change and political pressure. The Justices, as people in our society, were influenced by our changing mores. No one who heard or read Kennedy’s majority opinion, could doubt that he is the product of an environment that accepts and upholds the dignity of people of the same sex seeking marriage rights. But the additional political pressure of a popular movement, backed by the 60% of the US populace who favor marriage equality, made it clear to the Supreme Court that the road to stability lay in supporting LGBT marriage rights. This ruling is a testament to a people willing to grow in liberty and a movement persistent in its goals.