Are the Courts Ahead of the Public on Gay Rights?

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Protesters gather in response to the stay granted by the Ninth Circuit Court of Appeals upholding California's Proposition 8 on Aug. 19, 2010

Are federal courts the best hope for gay rights? Even with Harry Reid promising to bring the repeal of "Don't ask, don't tell" to a Senate vote after Thanksgiving, many activists feel the judiciary is still their best avenue to win change. But could court victories end up backfiring and slowing the trend toward a wider acceptance of gays into American life?

In the 17 years since Hawaii's Supreme Court issued the first ruling in favor of gay marriage, it has been judges — not lawmakers, and certainly not the voters in 30-odd state referendums banning gay marriage — who have sided with same-sex couples seeking to wed. That's never been clearer than it is now, with three different federal opinions in favor of gay rights that together threaten to end America's long history of legal discrimination against gays. There was the decision in August to overturn California's Prop 8; a ruling from July by a judge in Massachusetts striking down the 1996 Defense of Marriage Act; and just last month, a federal judge in Riverside, Calif., ordered the U.S. military to stop enforcing its policy banning openly gay personnel from military services. No matter how the decisions fare on appeal — and arguments in the Prop 8 appeal will be broadcast live just two weeks from now — by any measure, gay-rights advocates have achieved more momentum than would have been thinkable only a couple of years ago.

But some legal scholars say history suggests that the courts, no matter what they decree, cannot persuade a reluctant public to embrace social change — in fact, they may even polarize the issue. "Ever since Brown v. Board of Education, it's been the underlying view of political liberals that victories in court will give them the social changes they feel are needed, and do it faster [than waiting for change to happen on its own]," Professor Mike Klarman of Harvard Law School tells TIME. "But such rulings have often brought significant political backlashes."

When the Supreme Court issued Roe v. Wade in 1973, abortion became legal, but it had already been legal in many states and the fight over the decision has not died down since. When its 1972 Furman v. Georgia decision ruled that the death penalty was unconstitutional when it was capriciously administered, the reaction by the American public was not to look askance on executions, but rather the opposite. More than 35 states passed statutes that strengthened the death penalty, even as legislators tried to ensure it was applied more evenly. "We entered in a love affair with the death penalty," Klarman says, noting that support for abolishing the death penalty has yet to return to the levels it saw before the decision. "In both those decisions, the Supreme Court Justices believed they were accurately predicting the direction in which the American people were headed. But in both cases, they were wildly wrong."

Nearly 20 years ago, University of Chicago Professor Gerald Rosenberg attempted to prove that the Supreme Court cannot by itself accomplish significant social change. Instead, its rulings rarely have the kind of transformative effect on society that laws passed by Congress and enforced by a President can have. He argued in his book The Hollow Hope that both Brown v. Board of Education and Roe v. Wade make his case.

The civil rights changes would have happened whether Brown was decided or not, he wrote. And in Roe, the court's ruling came too soon, he argued, before the public was ready to accept abortions, a timing that has led to decades of social divisions. Two years ago, Rosenberg updated his book with a focus on the gay-rights legal campaigns, and concluded that his thesis on the inability of the court to instigate widespread social change holds.

Klarman tells TIME the most immediate impact of the Brown v. Board of Education rulings was to silence the racial moderates in the South and embolden hard-core racists. "There were many areas of civil rights that were easier issues," he says. "There was much greater support for opening up the right to vote, for the integration of graduate and professional schools, for the integration of public transportation. But when it came to integrating grade schools, that was something that was harder. That was something the racial conservatives were going to fight to the hilt to prevent."

When the court ruled, movement on even the less controversial civil rights initiatives froze, Klarman says. In that way, there are parallels with the modern gay-rights movement. For instance, Hawaii's ruling pushed Congress to pass the Defense of Marriage Act. The 2003 Goodridge decision legalized gay marriage in Massachusetts but ignited a conservative reaction that saw 11 states vote to amend their constitutions to ban gay marriage — a tide that significantly boosted Republican turnout in critical states in the 2004 elections. "There was a tremendous amount of backlash, with significant short-term political effects," says Klarman. It happened again just this month when voters tossed out three Iowa Supreme Court justices who had previously ruled in favor of gay marriage.

"[Might] the backlash prove to be powerful enough to delay permanent recognition of gay marriage? There is unquestionably the risk," law professor Marc Spindelman of the Ohio State University tells TIME. "Before [Ted] Olson and [David] Boies brought their Prop 8 case ... there were deep concerns about the timing of the case because of concerns that not enough groundwork had been done to win support for gay marriage."

That doesn't mean the historic gay-rights legal wins of 2010 are doomed to be Pyrrhic victories. It's simply too soon to know whether the courts' decisions will backfire or will help spur change. Rosenberg's research suggests the decisions will play second fiddle to the course set by Congress, the President and by the American people themselves. Besides, it remains unclear how the appellate courts will rule — in whose favor and how broadly. Will pushback — like that from the increasingly vocal and deeply conservative Catholic Church hierarchy — grow stronger? Or will conservative opposition turn strident, come across as bigoted and create public revulsion at such prejudice? Says Spindelman: "We're just going to have to wait."