Jonathan Rauch makes a very interesting argument at the New Republic, which is that the cause of marriage equality will actually be better served by not having the Supreme Court declare that there is a constitutional right, under the equal protection clause, that compels the states to allow same-sex marriage.
I bow to no one in my support for marriage equality. I have been fighting for it since 1996, when the cause seemed crazy and only the courts offered any hope at all. As part of that fight, the hardest thing I have done is to counsel my gay friends and allies that litigation was necessary, but that real civil rights—durable, deeply rooted civil rights, as opposed to what James Madison called “parchment barriers”—come from consensus, not from courts…
Gay Americans are now, at long last, winning the battle for marriage equality where it counts: in the hearts and minds of our straight fellow citizens. Only recently, polls began showing a narrow majority of the public supporting same-sex marriage. That trend broke through into politics in 2012, our annus mirabilis. The president and the Democrats embraced gay marriage after years of opposing it; so did some of the country’s leading conservative thinkers…
Here is a movie plot you have never seen and never will see: a disadvantaged athlete struggles against the odds, makes it to the Olympics by sheer force of grit and talent, and is ahead in the race for gold—when, with the finish line in sight, the referee calls off the competition, hands the hero a medal, and everybody goes home.
Gay Americans are in sight of winning marriage not merely as a gift of five referees but in public competition against the all the arguments and money our opponents can throw at us. A Supreme Court intervention now would deprive us of that victory. Our right to marry would never enjoy the deep legitimacy that only a popular mandate can bring.
I think he has a point, but that last sentence is wrong. Same-sex marriage will enjoy the same legitimacy that interracial marriage now enjoys at some point in the future; the only question is how long it will take and what path will get us there. But I do think he has a point that, looked at through the lens of history, it will take less time for that view to become ingrained in the culture if the battle for equality is won first at the ballot box before winning in the courts.
To some extent, this is all navel-gazing. I think it’s very unlikely that the Supreme Court is going to declare a constitutional right to marry someone of the same gender in either of the cases they’ve agreed to hear. As I’ve said before, I think they will either punt or come down with a narrow victory for equality in one or both of these cases. 10 to 15 years from now, after many states have repealed their bans on same-sex marriage and achieved marriage equality on their own, then the Supreme Court is much more likely to make a broad equal protection ruling striking down the remaining such laws in the reddest of the red states.