By Mike Dorf
As I write, New York appears poised to become the most populous American state to legalize same-sex marriage by legislation. The bill could pass as early as today or it could be derailed by an eleventh-hour stalling tactic of the Republican leadership. Late last week, Republican opponents of the bill were arguing that it needed more robust exemptions for religious organizations. I regard this as a delaying tactic (or worse) because the bill already makes clear that religious organizations will not be required to perform or grant their facilities for the performance or celebration same-sex marriages. Further accommodations could be imagined but to my mind they would be unwarranted: E.g., religiously-affiliated hospitals could be given the legal right to deny same-sex spouses the patient-visiting privileges that are accorded opposite-sex spouses. That would go too far because, as far as I know, it doesn't violate any religious doctrine to allow any particular person to visit the hospital bed of any particular patient. Accordingly, I interpret the bid for greater religious protection as some combination of stalling, political cover, and an attempt to confuse the public.
Suppose that the bill passes. That would be rightly regarded as a great and, in the scheme of things, a remarkably speedy victory for a civil rights movement. It took about two centuries from the dawn of the Abolitionist movement until something like full legal equality for African Americans. It took over a century from the birth of the American women's rights movement (in the mid-nineteenth century) to full legal equality for women. The time from the birth of the gay rights movement to full legal equality, in New York at least, will thus have been just over forty years (if we date the movement to Stonewall).
In the aftermath of New York's legal change, we can expect any number of legal analysts to proclaim that the adoption of same-sex marriage by legislation demonstrates that there is no need for the courts to act in this area. Some of these analysts will be saying that they support same-sex marriage as a policy matter but that they don't think it's constitutionally required--and that's fine. I disagree in this instance: I think same-sex marriage makes sense as a policy matter and that its denial violates equal protection. But I certainly understand how one might favor some position on policy grounds but not think it's constitutionally required. For example, I think that federal funding for the Corporation for Public Broadcasting is a sensible policy but I certainly don't think it's constitutionally required.
However, some of the analysts who will say that the courts shouldn't recognize a right to same-sex marriage will mean something more categorical. They will mean something like this: As a general matter, basic legal changes in response to changes in social attitudes should be accomplished through democratic means, not through the courts. Stated as a presumption--use democratic politics first and only turn to the courts when you're stuck--this may be good pragmatic advice. But based on past experience, I think that some people will mean the italicized lines as something more like an ironclad rule. If so, they will be underestimating the dialectical quality of the relationship between legal change through the courts and through more directly democratic means.
Consider interracial marriage. In 1955, in Naim v. Naim, the Virginia Supreme Court upheld that state's prohibition on interracial marriage, partly on the ground that a majority of states had similar prohibitions. The U.S. Supreme Court ducked the issue based on supposed procedural defects in the record. Twelve years later, in Loving v. Virginia, the Court invalidated Virginia's anti-miscegenation law. What happened in between? As the Court noted in footnote 5 of its opinion, between 1952 and 1967, 14 states repealed their laws forbidding interracial marriage.
One can legitimately contest the normative significance of such intervening legal developments. Widespread and rapid changes in positive law demonstrate changing norms about questions of liberty and equality; unless one is a thoroughgoing originalist, such evidence of social norms looks like an important source for determining the content of open-ended constitutional protections for equality and liberty. However, one could argue that federalism points in the other direction: dissenting states, in this view, should not have to conform their law to the views of a majority of states.
However one resolves the normative question, there is little doubt that as a descriptive matter, legislative change often paves the way for judicial change, and vice-versa. The state legislative changes that inspired the Supreme Court's decision in Loving were in turn prompted by the changing moral and social landscape that resulted, in part, from the Court's earlier decision in Brown v. Board, in turn made possible by developments under the leadership of elected leaders (such as Truman's ordering, and Eisenhower's carrying out, of the desegregation of the armed forces).
Likewise, here. Same-sex marriage was on the national agenda since the early 1990s (partly as a result of state court decisions in Hawaii and Vermont) and it has gained momentum in recent years as a result of a mix of judicial decisions (Supreme Court in Lawrence v. Texas; Massachusetts, California, Connecticut, Iowa) and legislative action (D.C., Maine, Connecticut, and now perhaps New York), even in the midst of backlash by referendum (California, Maine, and the other states that voted down same-sex marriage in recent years). Just as it would be incredibly naive to think that the courts make their decisions unaffected by the political process, so too it would be mistaken to think that decisions of the courts do not affect the political process.