Each incremental victory at the state level, moreover, helps to prepare the ground for eventual broader reform, for at least two reasons. First, opposition based on the contention that same-sex marriage is an oxymoron is plausible only so long as there is no such thing as same-sex marriage. Now that thousands of same-sex couples have been married, no one can claim that same-sex marriage is simply unthinkable. Second, just as the increased visibility of gays and lesbians over the last generation has reduced fear and prejudice born of ignorance, so the fact that marriage has been extended to same-sex couples in several states and nations without any deleterious consequences is likely to undermine opposition based on fear of the unknown. While a majority of all Americans still oppose gay marriage, 57 percent of Americans under forty support it; time is on gay marriage’s side.
Eskridge, Spedale, and West also argue that the best forum for achieving lasting victory is legislatures, not the courts. That seems less clear. There is no question that those seeking change cannot restrict their advocacy to the courts; a multitiered strategy is critical. But the recent court decisions suggest that it would be wrong to write off the judiciary. In view of the polls showing continued popular resistance to gay marriage, progress in the political realm is likely to be difficult. At the same time, the patent weakness of the legal arguments against recognizing same-sex marriage suggest that courts may be a more receptive forum. Polls show much less resistance to civil unions, and in some instances, majority support for that alternative. Thus, a state-by-state strategy that pursues civil unions politically, and same-sex marriage through the courts, may be most likely to succeed.
Moreover, as Gerstmann argues, judicial decisions can serve as a catalyst for political change. The first year after the Massachusetts Supreme Court approved same-sex marriage, a constitutional convention in Massachusetts voted 105–92 in favor of an amendment barring same-sex marriage. Massachusetts law requires such a vote two years in a row, however, and the next year, the amendment was voted down, 157–39. In 2007, the amendment again was defeated, 151–45. Today, 56 percent of Massachusetts voters approve of same-sex marriage. The supreme court decision took some time to sink in, but seems to have played a positive role in changing the political landscape.
As the United States Supreme Court has recognized, the history of constitutional law “is the story of the extension of constitutional rights and protections to people once ignored or excluded.” Just as the institution of marriage survived its extension to couples of different races in the 1960s, so it will survive its extension to couples of the same sex in the twenty-first century. If the inclusion of same-sex couples changes the institution, it is likely to be for the better, rendering it more consistent with ideals of fairness. For marriage itself, then, and more important for the constitutional principle of equality, the only just result is to accord equal dignity and respect to all those who choose to enter long-term, committed family relationships, irrespective of their sexual orientation.
The Same-Sex Future by David Cole in The New York Review of Books.