In the Aug. 5 issue of The New Republic, Richard Posner, a judge of the U.S. Court of Appeals for the Seventh Circuit, writes (by way of reviewing books on the legal fight for same-sex marriage) that it’s “The Culture, Not the Courts” that’s the prime driver of marriage equality (now posted online with a revised title). Here are a few excerpts:
If there was a backlash to Lawrence [finding sodomy laws unconstitutional] it was slight, because Lawrence wasn’t that big of a deal. For by 2003, there was virtually no enforcement of laws against homosexual sex….
All in all, the judicial role in the rise of homosexual marriage seems to have been quite modest. Probably the courts have done little either to accelerate the trend in acceptance of such marriage or, through backlash, to retard the trend. In retrospect, the growing acceptance of homosexual marriage seems a natural consequence of the sexual revolution that began in the 1960s rather than an effect, even to a small degree, of litigation.
The point being that courts recognize social change, but rarely lead the way.
Posner also ponders what’s next, noting:
…the Supreme Court is unlikely for some time to force homosexual marriage on states by declaring it a constitutional right. That would be one bombshell too many. The most the Court is likely to do (how likely I don’t know) is to force states that do not allow homosexual marriage nevertheless to recognize such marriages made in states that do allow it. Most states recognize marriages made in another state as valid under that state’s law even if not valid in the state asked to recognize those marriages (Maybe the other state authorizes first cousins, or thirteen-year-olds, to marry and the state asked to recognize the marriages does not allow its own citizens to make such marriages). The Supreme Court may decide not to allow the state to make an exception for homosexual marriages.
That would be an important, and welcome, step. Somewhat contrary to Posner’s thesis, such a ruling seems like it would move things forward to a considerable degree. But I accept his contention that the Court will never get too far ahead of where the people are.
More. At Reason‘s “Hit & Run” blog, Jesse Walker writes:
Contrary to the chatter you hear in some quarters, gay marriage was not invented by social engineers and imposed on an unwilling country. It was invented by gay people themselves, who started getting married without anyone’s permission; their unions gradually gained acceptance in American communities and in the marketplace before state or federal governments were willing to recognize them. It is a classic example of grassroots social evolution…