Gay Marriage Issue Steering Clear of the Supreme Court - NYTimes.com

Gay Marriage Issue Steering Clear of the Supreme Court - NYTimes.com

By ADAM LIPTAK

WASHINGTON — And now there are four. In the space of a week, the number of states allowing same-sex marriage has doubled, with Iowa and then Vermont joining Massachusetts and Connecticut. In California, gay and lesbian couples were exchanging vows for five months before voters put a stop to the practice in November. Californians are still talking it over, though, and loudly. New York and New Jersey may be nextto debate the question.

In other contexts, this sort of turmoil might amount to an invitation for the United States Supreme Court to step in. But there are all sorts of reasons the court is likely to keep its distance, and a central one is the endlessly debated 1973 decision that identified a constitutional right to abortion.

“The concern about creating another Roe v. Wade looms large,” said Nathaniel Persily, who teaches law and political science at Columbia. “At least five members of this court, if not more, would probably be reluctant to weigh in on this controversy, especially given the progress that is being made in state legislatures, state courts and public opinion.”

Court decisions on issues like school desegregation, abortion and same-sex marriage can raise questions about the judicial branch usurping the democratic process. But there are strategic issues as well. The Supreme Court not only decides cases but also decides which cases to decide. In jurisprudence as in life, timing is everything.

Even some strong supporters of abortion rights believe, for instance, that Roe went too far too fast and may have been counterproductive. One of them is Justice Ruth Bader Ginsburg.

“The court bit off more than it could chew,” Justice Ginsburg said in remarks after a speech at Princeton in October. It would have been enough, she said, to strike down the extremely restrictive Texas law at issue in Roe and leave further questions for later cases.

“The legislatures all over the United States were moving on this question,” she added. “The law was in a state of flux.”

Roe shut those developments down and created a backlash that lasts to this day.

“The Supreme Court’s decision was a perfect rallying point for people who disagreed with the notion that it should be a woman’s choice,” Justice Ginsburg said. “They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges.”

Until the Vermont Legislature acted on Tuesday, victories for same-sex marriage also came only from courts, but they were state courts. These courts based their decisions on state constitutions, which, moreover, means that the United States Supreme Court almost certainly could not review those particular rulings, even if it were inclined to.

Successive state court lawsuits from supporters of same-sex marriage reflect a strategy that is pragmatic about building local support, said Andrew Koppelman, a law professor at Northwestern. “The Iowa decision,” he said, “is the product of a very smart legal team researching every state supreme court and every state legislature.” The Iowa Supreme Court ruled in favor of same-sex marriage a little over a week ago.

“It’s courts that started this,” Mr. Koppelman said of the same-sex marriage movement. “The courts are able to make a difference if there is a social movement that could go either way.”

Patrick J. Egan, who teaches politics and public policy at New York University, said the aftermath of controversial court decisions tended to follow a pattern. Immediately after a decision, he said, the mere fact of judicial endorsement of a position increases public acceptance slightly. Then politicians’ initial reactions can help sway public opinion.

The pattern on same-sex marriage, Professor Egan said, is that “Republicans react very opposed and Democrats react very, very neutrally.” As a consequence, he said, “opposition to same-sex marriage shoots up a bit in the month or two or three after a big court decision.”

Later, though, unless the decision is overturned, the public lives with the consequences and decides for itself. “Over time,” Professor Egan said, “people’s experience with the policy changes their attitudes.”

Professor Koppelman said Roe followed that general pattern.

“On the one hand, Roe certainly triggered an enormous backlash,” he said. “On the other hand, it created a generation of American women who grew up with the right to abortion assumed.”

In “Public Opinion and Constitutional Controversy” (Oxford, 2008), Professors Egan and Persily, along with Kevin Wallsten, tracked public opinion about gay rights after several court decisions.

When the Supreme Court, in Lawrence v. Texas in 2003, struck down a Texas law making homosexual sex a crime, public support for same-sex marriage — a question not directly implicated by the decision — dropped sharply. “Even that case actually provoked a major backlash,” Professor Persily said.

Five months later, the Supreme Judicial Court of Massachusetts issued its decision allowing same-sex marriages, causing public support for such marriages to fall further. It did not recover to pre-Lawrence levels until 2005.

But since then there has been remarkable movement in support of same-sex marriage.

“The most recent CNN poll put it at 44 percent,” Professor Persily said. “More important, the opposition has gone down. And people who are opposed are much more likely to favor civil unions,” as opposed to no rights at all for gay couples.

“There has been a shift of about 10 percentage points in five years” in public support for same-sex marriage, Professor Persily added. “On a deep moral issue like this, that’s very rare.” Public opinion about abortion, by contrast, “has been largely frozen for years.”

The trend toward greater support for same-sex marriage is likely to continue, Professor Egan said. Part of it is generational: younger people are far more apt to support gay rights than older people. And part of it is a product of changing social attitudes.

Since the Vermont Legislature decided to allow same-sex marriages, legal scholars have been debating whether that political victory could have been secured without the judicial decisions that preceded it.

“Without the activist decisions on same-sex marriage,” Professor Persily said, “there might not have been a fire lit under the legislature that passed it.”