The same-sex marriage battle won’t be settled with a Supreme Court decision, regardless of what the justices rule.
Should the court stop short of recognizing gay marriage, gays and lesbians will still press for the right to marry in the court of public opinion, not to mention the halls of justice and government. And should the court grant the right, millions of Americans still will refuse to rally to the decision of a court of nine men and women.
This week’s court hearings underscored how America’s view of same-sex marriage is changing. A majority now support it. But that change is being driven by a wide variety of forces – including popular culture, churches and the experiences of friends and families – rather than a court. That clash of forces might take years to settle into a consensus one way or the other, if ever.
While the court ruled against desegregation in the Brown v. Board of Education case in 1954, for example, questions of race still split the country for decades afterward, and race-tinged issues such as immigration and affirmative action divide Americans even today.
After the court established abortion rights 40 years ago in the Roe v. Wade case, the country remained split and still does.
“These court cases begin to settle things, but there’s not a finality to it,” said Democratic former South Carolina Gov. James Hodges, who’s now a consultant based in Columbia, S.C.
Court cases addressing large social issues can reflect trends already under way in society, seen in popular culture and taking hold in the country’s psyche.
The 1954 ruling on desegregation came seven years after Jackie Robinson had integrated baseball. In the years after that, white Americans were exposed to black artists such as Bill Cosby and Diahann Carroll on television. Similarly, gays and lesbians have become more widely accepted in society, in part as more of them reveal their orientation and are embraced by friends and family, and as the culture portrays them as part of the mainstream.
“Social change is organic,” said Will Marshall, the president of the Progressive Policy Institute, a centrist group. “It takes time for people to accept different concepts and ideas.”
Major cases often follow two standard paths: They give the winning side direction and momentum, but they’re often muddled enough that the opposition also winds up energized.
Roe was a clear defeat for foes of abortion rights, but it had enough ambiguity about states’ powers that opponents to this day eagerly seek ways to weaken it. Even some abortion-rights advocates fretted that it was too sweeping, too far ahead of public opinion at the time.
“It’s not that the judgment was wrong, but it moved too far too fast,” Justice Ruth Bader Ginsburg, who wasn’t on the court at the time, said last year. At the time, according to The Associated Press, abortion was legal on request in four states and permitted under certain circumstances in 16 others.
The ruling was an important catalyst in making the nascent conservative movement a dominant political force. By 1980, it won control of the Republican Party, and it’s made opposition to abortion a staple of its platforms ever since. Social conservatives have broadened their agenda, but opposition to abortion “still energizes the base of the Republican Party,” said Gary Marx, the executive director of the Faith & Freedom Coalition, a conservative group.
Similarly, Brown v. Board of Education energized political opponents and ambiguity helped keep the political fires roaring. The court didn’t attempt immediately to explain how its decision was to be implemented. That came a year later, when it said integration was to be achieved with all deliberate speed, a phrase that analysts often saw as giving segregated school systems too much time to change..
The rulings sparked a bitter, sometimes bloody conflict that lasted years. Only after Congress passed civil rights laws in the 1960s – after years of protests and resistance from segregationists that carried into the 1970s – did integration gain widespread acceptance.
The political debate over same-sex marriage is likely to take two forms: Many Republicans remain reluctant to fully embrace the idea, while Democrats are quickly falling into line in support, fueled by polls that show growing backing.
A CBS News survey March 20-24 found that 53 percent thought marriage should be legal for gays and lesbians, up from 46 percent last summer. Pointing to the future, nearly three out of four people aged 18-29 support gay marriage.
Helping to frame the argument for Democrats are leaders who paint same-sex marriage as the latest step in the long effort to combat discrimination.
“This is as big as our country, as big as our Constitution, as big as our being a beacon of equal protection to the world. It’s as personal as every family,” said House of Representatives Democratic leader Nancy Pelosi, who represents a San Francisco district.
Some backers think the issue will fade quickly. Doug Kendall, the president of the Constitutional Accountability Center, a liberal legal advocacy group, compared the potential impact to the 1967 case Loving v. Virginia, which declared state laws against interracial marriages unconstitutional.“The country moved on,” Kendall recalled.
The country may be moving on, but gingerly so far. Most states don’t sanction gay marriage. But politicians with diverse constituencies, or those seeking higher office, realize that while staying opposed, they have to show they’re not being intolerant.
“I respect people that disagree with me on certain things, but they have to respect me too,” Sen. Marco Rubio, R-Fla., told the Conservative Political Action Conference earlier this month. “Just because I believe that states should have the right to define marriage in a traditional way does not make me a bigot.”
A potentially leading rival for the 2016 presidential nomination, Sen. Rand Paul, R-Ky., also was careful.
“I do believe in traditional marriage. . . . There are states that have decided in the opposite fashion, and I don’t think the federal government should tell anybody or any state government how they should decide this,” he said earlier this week on Fox News. “Marriage has been a state issue for hundreds and hundreds of years.”
He may have offered a preview of the debate to come: “I think,” he said, “it’s a really complicated issue.”