With two gay marriage cases before the Supreme Court this week, there has been some hand-wringing that the Court could somehow go too far and engender a backlash against LGBT rights. The narrative goes something like this:
The Court acted too quickly by recognizing a right to abortion in Roe v. Wade and we've been fighting about it ever since. If the Court had simply let the political process run its course, ultimately all states would have adopted laws liberalizing abortion and the matter would be settled. Support for gay rights is on the upswing; better for the Court not to interfere with this momentum lest we spend the next 40 years or more fighting about that, too.
The problem with the backlash narrative is twofold: 1) It is historically inaccurate, and 2) it fails to treat abortion and marriage as the fundamental rights that they are.
As journalist Linda Greenhouse and law professor Reva Siegel have persuasively established, before Roe was decided there was popular support for abortion rights. Yet despite that support, liberalization of abortion throughout the country was far from guaranteed, and social movements, religious institutions, and political parties already had escalated conflict over abortion.
Moreover, much of the erosion of Roe over the last 40 years was ushered in by the Court itself. First, in 1980--only seven years after Roe--the Court in Harris v. McRae upheld the Hyde Amendment, which denies abortion coverage to Medicaid enrollees. This policy was then replicated in numerous government health plans and programs and nearly kept President Barack Obama's health reform law from passing in 2010.
Then, in 1992, in Planned Parenthood v. Casey, the Court lowered its strict standard of review for abortion laws, replacing it with a vague standard that prohibited a state from imposing an "undue burden" on choosing abortion. That ruling opened the floodgates for a bevy of new state restrictions--from ultrasound requirements to waiting periods to biased counseling laws--over which we are still fighting today.
The hundreds of laws that animate the anti-abortion movement every year would never have been introduced had the Court itself treated Roe as settled law and stood firmly behind its own decision. Nor would a judge's position on abortion have become a litmus test for Senate confirmation had the Court declined to modify Roe on so many occasions.
In addition to being ahistorical, the backlash theory implicitly treats abortion and marriage equality as hollow rights that are not actually entitled to constitutional protection by arguing that states should decide the matter. But both abortion and marriage are fundamental rights that spring from the constitutional right to privacy. The entire purpose of having a federal constitution is to ensure that basic rights like these are protected no matter where a person happens to live. Would anyone argue that African-American children should have waited patiently for each and every state to recognize and enforce their right to an equal education in order to avoid the confrontation over the Little Rock Nine?
The Court has repeatedly found that the right to marry is a fundamental right that cannot be denied to anyone, including interracial couples and incarcerated felons. It is unreasonable to expect gays and lesbians to wait any longer to secure the same rights as every other citizen -- certainly not for fear of a backlash.
While a backlash is undesirable, what is worse is not having rights vindicated in the first place. We need look only to an instance when the Court held itself back because it did not wish to preempt the political process. The 1973 case, Frontiero v. Richardson, considered whether sex-discrimination cases were entitled to the highest standard of review. A plurality opinion with no clear majority found that they were. But Justice Powell said in a concurring opinion that there was no need for the Court to increase its scrutiny because the Equal Rights Amendment was close to being ratified by the states.
As we now know, however, the ERA never was ratified and yet the Court never reconsidered its decision, leaving the sex classification in the realm of "intermediate scrutiny," where a discriminatory law is just as likely to be upheld as struck down.
The backlash theory is simply another way of arguing that those who are asking for the Constitution to protect them are pushing too far, too fast. But in our constitutional system, the role of judges is to determine what protection the Constitution affords, not whether it's the correct political time for those rights to be granted. Judges are unelected precisely so that they will not be swayed by the political moment -- because rights should never have to depend on popularity.
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