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Postscript: Fighting for gay rights

Is it better for the Supreme Court to rule on same-sex marriage, or should lawmakers weigh in first?

May 19, 2012
  • Same-sex marriage is legal in New York, one of six states that have endorsed such unions.
Same-sex marriage is legal in New York, one of six states that have endorsed… (Mario Tama / Getty Images )

Reacting to Eric J. Segall's Op-Ed article on Tuesday warning of a gay rights backlash if theU.S. Supreme Court overturns Proposition 8, reader Sara Wan of Malibu wrote:

"It is wrong to suggest that pushing for civil liberties should be left to Congress and not include the judicial system. As long as discrimination is legal, it is harder to fight it.

"Segall's analogy to past laws banning interracial marriage is incorrect. While there was not a specific push to legalize interracial marriage, the 1967 Supreme Court decision was the direct result of the civil rights movement. It is ludicrous to argue that the civil rights movement needed only congressional action, not the court's involvement.

"One front in any war is never sufficient; it takes action on every front. It is wrong to avoid confrontation because of a fear of backlash. No major social change ever happened without a fight."

Eric J. Segall responds:

By suggesting that the time is not yet right for a Supreme Court decision overturning the laws of more than 40 states that do not recognize same-sex marriage, I am not arguing that civil liberties should be left to Congress or that the Supreme Court has no role to play in generating societal change.

But when the court tries to force that change too quickly, it usually fails and produces a backlash.

Nearly four decades after the decision in Roe vs. Wade in 1972, the right to an abortion is less secure than at any point since that case was decided. The religious right still uses the decision to impair our judicial confirmation process, the advancement of women's equality, the separation of church and state and other issues important to the left.

The issue for me is not whether the court should enforce marriage equality, but when.

The stakes of timing the decision correctly are high.

A favorable decision depends on JusticeAnthony M. Kennedy(there are four probable votes against same-sex marriage, so any decision will probably be decided 5 to 4), who is turning more to the right every term.

A decision against marriage equality would be a disaster and is definitely a possibility. Same-sex marriage could be the 21st century's "separate but equal."

On the other hand, a favorable court decision that imposes same-sex marriage on the states that have chosen not to recognize it could set back the cause of equality for gays and lesbians for years. And just as Roe vs. Wade has galvanized social conservatives, a decision requiring marriage equality would serve as an effective fundraiser for right-wing politicians and anti-progressive causes.

I am not arguing that the court should affirm same-sex marriage bans. Rather, the court should simply delay hearing the issue until more progress is made on the political front.

The court overturned prohibitions on interracial marriage (and same-sex sodomy) only after strong support for those bans had waned.

The court should follow a similar path for same sex-marriage.


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