This artist rendering shows Roberta Kaplan, attorney for plaintiff Edith Windsor, addressing the Supreme Court, Wednesday, March 27, 2013, as the court heard arguments on the Defense of Marriage Act. (AP Photo/Dana Verkouteren)
The talking heads and legal commentators seem to more or less agree on the likely outcomes of the two marriage equality cases argued in front of the Supreme Court this week: It’s too soon for the Court to go all the way and declare same-sex marriage legal in all fifty states, so they’ll punt on the issue. For Hollingsworth v. Perry, the case brought by two California couples challenging Proposition 8, their state’s ban on same-sex marriage, that means declining to issue a broad ruling on marriage equality. The Court could rule in favor of the same-sex couples who challenged Proposition 8, but apply the decision either only to California or only to the states that already extend civil rights benefits to same sex couples; it could also rule that the petitioners lack legal standing to bring the case to the Court. For the case argued on Wednesday, which centers on one section of the Defense of Marriage Act (DOMA) pertaining to federal benefits for same-sex spouses, the Court could strike down only the challenged section without requiring any states to recognize same-sex marriage, or could also decline to rule because of lack of standing.
With 58 percent of the American public now favoring marriage rights for same-sex couples and an increasing number of states recognizing same-sex marriages, the Supreme Court justices evaluating these cases must be acutely aware of their legacies and the historical import of this issue. The right to marry someone of the same sex is the most visible civil rights issue of the past decade. So why are even liberal-minded people encouraging the Court to wait it out?
Numerous commentators, most notably at The New York Times, have expressed concern that a broad ruling on marriage equality could turn into the next Roe v. Wade, igniting decades-long culture wars and damaging public perception of the Supreme Court. Better to rule narrowly, they say, and let the states follow the emerging trajectory towards marriage equality.
That argument, though, is not only totally ahistorical, but dangerous for both civil rights and the Court’s credibility.
Contrary to the current mythology, Roe didn’t incite the culture wars, and before the case was decided in 1973, the right to abortion across the fifty states was far from a foregone conclusion. As Linda Greenhouse and Reva B. Siegel detail in their book Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling, an organized, primarily Catholic Church–backed anti-abortion movement existed in force before Roe. Although abortion rights were initially championed by Republicans and favored by a majority of Americans, social conservatives saw an opening to exploit for political gain. According to Greenhouse, before the Court decided Roe, conservative architects of the “New Right” had already decided to use opposition to abortion as part of a strategy for party realignment that would come to fruition with the election of Ronald Reagan in 1980. “New Right” leaders sought to bring Catholics and into the party and politicize Evangelicals to form a coalition of traditionalists based on hostility to progress and change.
Abortion was hardly their only issue. The new conservative coalition opposed the Equal Rights Amendment, claiming that gender equality would destroy the family and send our daughters to war. They stoked white voters’ fears of full racial integration with racist tropes about black criminals and welfare queens. Those narratives and appeals to tradition continue today, with social conservatives hoping for a return to a gauzy vision of Good Old Days America before the social upheavals of the 1960s and ’70s—and before women, people of color, religious minorities and other marginalized groups were able to secure a full range of rights.
A different ruling in Roe—or none at all—wouldn’t have prevented a Republican Party realignment that was already underway. It wouldn’t have prevented abortion, and the rights of women and other traditionally disempowered groups, from becoming controversial political issues. But a Roe-free United States would almost certainly mean a United States wherein abortion laws were wildly varied, with women in many parts of the country having no legal right to abortion at all. Similarly, even though Brown v. Board of Education inspired an immediate backlash from Southern racists, it’s tough to argue that without court intervention, racial integration of public schools and other facilities would be better without Brown than the (admittedly lacking) state of racial equality today.