History's Answer: Yes

By Peter Jamison

Since Californians voted to enshrine discrimination against gay couples in their state constitution on Nov. 4, the varied strains of lamentation from San Francisco's chattering classes have risen to a choral swell. The success of Proposition 8, which banned same-sex marriage, gave rise to all manner of complaint: Black voters killed the right of gays and lesbians to wed! So did churches! So did black churches! So did the class of first-graders who naively attended their lesbian teacher's wedding before the baleful eye of the news media! So did the preening Gavin Newsom, who used his stature as the city's mayor to issue a now-infamous harangue that gay marriage was coming to the Golden State, "whether you like it or not."

Another voice has arisen amid these plaintive notes, and it is one that speaks not with regret, but with something close to icy assurance. Its argument is that democracy is no guarantor of civil rights, and that Prop 8's success is thus, in the long run, irrelevant. Disenfranchised minorities have never advanced their cause at the ballot box, but through the federal and judiciary mechanisms designed to ensure equal protection under the law. One need look no further for evidence than the 1954 U.S. Supreme Court Case Brown v. Board of Education of Topeka, which forced school desegregation upon unwilling states.
 

At first blush, this line of reasoning has much to recommend it. History does offer any number of court decisions and federal mandates that marked radical steps forward in the struggles of women and ethnic minorities. More fundamentally, the principle that Americans of all creeds and colors are protected against the tyranny of the majority is dear to anyone who bothered to pay attention in a high-school level U.S. history class. "The whole purpose of putting protections for minorities into the constitution is to protect them from the transient will of the majority," says Joseph Grodin, a professor at Hastings College of the Law. "And that's the whole purpose of judicial review."

There's just one problem with this argument: Many legal scholars don't agree. In his 1993 book The Hollow Hope, University of Chicago political science professor Gerald Rosenberg famously argued that courts have had far less sway than some activists imagine in advancing causes such as desegregation and women's rights. Indeed, a case can be made that courts have affirmed certain minority rights only after they have been widely accepted by the general public.

"By the time the (U.S.) Supreme Court ruled to uphold interracial marriage in 1967, all but 16 states had already repealed their laws (banning the practice). It was already a majoritarian understanding that there was a right to interracial marriage," says UC Berkeley law professor Goodwin Liu. Gay marriage, Liu adds, is "not an issue that a single court decision can settle for all time." Hastings law professor Ethan Leib notes that it took a decade for the principles laid out in Brown v. Board to be widely applied through the 1964 Civil Rights Act and 1965 Voting Rights Act. "That's legislation," Leib says of the intervening steps. "It's mobilization. It's hearts and minds. It's politics."

Leib predicts that the U.S. Supreme Court -- most likely with a few new Obama-appointed justices -- will eventually strike down laws banning gay marriage. But even then -- as in the aftermath of the 1973 Roe v. Wade decision -- gay rights, as a practical matter, will be far from universal. "There will be localities where it's hard for gay people to get married, just as it's hard for women in certain localities to get an abortion," Leib says. For gay-marriage advocates placing their hopes in the wisdom of the state or federal judiciary, there may be a lesson here: Pay attention to those hearts and minds, whether you like it or not.

Image of former Arkansas Gov. Orval Faubus courtesy of Bettmann/Corbis.