Judicial review, Prop 8, and same-sex marriage

Ilya Somin on the question of how much impact judicial review has had in the question of same-sex marriage:

In recent years, leading scholars such as Michael Klarman and Gerald Rosenberg have argued that judicial review is rarely if ever effective in protecting rights that aren't supported by the political branches of government and majority public opinion. The political backlash against the Massachusetts Supreme Judicial Court's 2003 gay marriage decision has seemingly added fuel to these revisionists' fire.

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The crucial point here is that in 29 of the 30 states that passed anti-gay marriage amendments, there wasn't any legal gay marriage anyway. Thus, gay marriage advocates didn't actually lose much in these states. To be sure, the enactment of these amendments may make it more difficult to adopt gay marriage in the future. Rosen emphasizes this point. However, it's important to remember that most state constitutions are actually easy to amend. That's why the anti-gay marriage forces were able to pass their amendments so quickly. In many states, a state constitutional amendment is an only slightly greater obstacle to legal change than a statute. From a pro-gay rights standpoint, the adoption of gay marriage in two states and its near-adoption in California was likely worth the cost of making gay marriage slightly more difficult to enact in some 30 states where it was unlikely to be adopted in the near future anyway.

Moreover, both Just and Rosen undervalue the extent to which the pro-gay marriage court decisions have shifted the parameters of the political debate. With the relatively radical gay marriage option now on the table, other pro-gay rights measures such as civil unions seem moderate by comparison. Thus, civil unions are now supported by the majority of the general public, and even by some social conservative politicians, including George W. Bush. It is difficult to imagine this result coming about so quickly without the pro-gay marriage judicial decisions.

None of this proves that the state supreme court decisions requiring gay marriage were correctly decided. It does, however, show that judicial power is often more potent than the Klarman-Rosenberg thesis suggests. To be sure, courts are unlikely to protect rights that are completely bereft of support elsewhere in society. If not for the liberalization of popular attitudes towards gays over the last 50 years, there would never have been enough pro-gay judges to reach decisions like Goodridge. But although the courts are not completely free of outside constraints, they can indeed sometimes protect rights that are opposed by majority opinion and by the political branches of government. Co-blogger David Bernstein and I tried to outline the conditions under which that might happen in this 2004 Yale Law Journal article criticizing Klarman. Although we didn't focus on the gay marriage battle specifically, many of our points apply to it as well.

One point though:  If there is any validity to the notion that the existence of civil unions served to grease the slippery slope toward full same-sex marriage, this may have the effect of stifling a movement toward enacting civil unions where they don't already exist, and ending them where they do.