Observation Post
by Philip C. Winslow
Memorial Day Snapshots
Carole Joffe: The Legacy of George Tiller

Carlos A. Ball: The Silver Lining in the California Supreme Court’s Same-Sex Marriage Ruling Upholding Proposition 8

Today's post is from Carlos A. Ball, Professor of Law at the Rutgers University School of Law (Newark). He has written extensively on gay rights issues and is the author of The Morality of Gay Rights: An Exploration in Political Philosophy. He lives with his family in Brooklyn, New York.

Book cover for From the Closet to the CourtroomNow that it has been a week since the California Supreme Court's decision upholding Proposition 8, it is a good time to take stock of what is happening with same-sex marriage not only in California, but also in other parts of the country. For those of us who support LGBT rights, the California court's decision was disappointing and frustrating. But in the long run, I think that the LGBT rights movement will benefit politically as a result of the court's ruling.

I say this because if the court had struck down Proposition 8 as unconstitutional, that would have created a political firestorm in California and elsewhere. Although there is a solid legal argument to be made that Proposition 8 should have been struck down because it was inconsistent with core principles contained in the state constitution, the politics behind the case are more complicated. If the court had sided with the plaintiffs, many would have seen the ruling as an affront to basic democratic values. The court, after all, would have overturned the expressed preference of a majority of Californians who voted in the November election.

There can be no doubt that if the court had struck down the Amendment, conservative political activists would have used the ruling to fire up their supporters by attacking the court for its supposed activism and lack of accountability. That kind of anti-judicial rhetoric has unfortunately proven quite effective in convincing voters in more than half the states to approve constitutional amendments banning same-sex marriage.

Judicial opinions in controversial civil rights issues tend to energize politically those on the losing end. It seems clear that LGBT rights forces in California are quite energized at the moment, much more so than they were during last fall's campaign over Proposition 8. In fact, it would seem that LGBT rights forces have a good chance of overturning Proposition 8 through the ballot in the next few years. That is, admittedly, small consolation for the thousands of California same-sex couples who will want to marry before then. Nonetheless, a victory via the ballot box will help the LGBT community achieve marriage equality without suffering the political backlash that would have undoubtedly followed had the California court ruled on the plaintiffs' behalf.

This is not to say that I believe that the LGBT rights movement has made a strategic mistake in seeking marriage through the courts. As I argue in my forthcoming book From the Closet to the Courthouse: Five LGBT Rights Lawsuits That Have Changed Our Nation (Beacon, 2010), it has been the movement's marriage litigation strategy that has forced the country to grapple with the existence of same-sex relationships and with the many hardships caused by the failure to legally recognize them.

Some have argued that the recent legislative successes in Vermont, New Hampshire, and Maine, show that a legislative/political strategy in the pursuit of same-sex marriage works better than lawsuits. I am skeptical of those arguments, primarily because they ignore the fact that if it were not for the lawsuits, none of the recent legislative victories would have been possible. We have to remember that before the Hawaii same-sex marriage lawsuit of the early 1990s, no state legislature in the country had ever paid any attention to the lack legal recognition of same-sex relationships. There is no reason to believe that a majority of legislators in Vermont, New Hampshire, and Maine would have endorsed same-sex marriages in 2009 if the LGBT rights movement had not, for the previous fifteen years, pursued an aggressive judicial strategy. That strategy has forced many states to defend in court an exclusionary policy that a growing number of Americans are realizing is both legally and morally indefensible.

Courts will and should continue to play an important role on the issue of same-sex marriage. At the same time, our victories in the courts have made political victories in places like Vermont, New Hampshire, and Maine possible. Fifteen years ago, the decision of whether to seek same-sex marriage through the courts or through the political process was an easy one because, although the odds were not great in either, they were particularly bad in the political arena. The choice of courts vs. political process is more complicated these days, primarily because the ongoing national conversation about same-sex relationships engendered by the lawsuits have made political victories in a growing number of states possible.

This is why I think there is a silver lining to last week's disappointing decision by the California Supreme Court. Even if the court's ruling was legally misguided, it should prove politically helpful because it will likely energize progressives while depriving conservatives of the politically effective charge of "judicial activism."

LGBT rights forces came very close to defeating Proposition 8 last November. I am hopeful that the next time the issue is put before California voters, a majority of them will take the side of marriage equality.