BOOKS JULY 24, 2013
In 1991 the political scientist Gerald Rosenberg published a book called The Hollow Hope in which he argued that the Supreme Court, and courts more generally, have much less influence on policy than is generally believed. Even such notable decisions as Brown v. Board of Education, which forbade racial segregation of public schools, had little effect, he argued, in integrating public schools in the states that had segregated their public schools for many years—little effect in part because of the backlash that the decision engendered in the South. The argument struck many readers as myopic. Even though Rosenberg was correct that the South resisted public-school integration successfully for many years after Brown, the decision stimulated the civil-rights movement that culminated in the Civil Rights Act of 1964 and in other notable civil-rights measures that have contributed to the decline of bigotry, not only racial, in the United States.
Now two books on homosexual marriage, one by a law professor who is also a historian, Michael Klarman, and the other by a political scientist, Jason Pierceson, analyze the applicability of Rosenberg’s skepticism about courts as agents of social change to homosexual marriage. Pierceson believes that the courts have played an important positive role in the growing acceptance of such marriage. Klarman thinks that they have played a positive role on balance, but a modest one; he emphasizes the backlash that litigation over homosexual rights has produced. Pierceson recognizes that it has produced such a backlash, but he thinks that it has produced less than Klarman believes.
These books are timely, published as they were on the eve of the Supreme Court’s two recent decisions involving homosexual marriage. One decision, Windsor v. United States, invalidated the provision of the Defense of Marriage Act (1996) that denied federal marital benefits to homosexual couples even if their marriage was valid under applicable state law. The other decision, Hollingsworth v. Perry, invalidated (though on technical procedural grounds) a referendum in California rejecting a law passed by the California legislature authorizing homosexual marriage; the effect of the Court’s decision was thus to reinstate the law.
The books are scholarly and well written, but deficient in payoff. They are basically just narratives of the history of homosexual marriage in the United States. They are competent narratives, but all that they are able to establish is that some judicial decisions regarding homosexual rights may have contributed to the growth in public approval of homosexual marriage, while others may have retarded that growth by creating a backlash, and some may have had both effects. Historical causality is often difficult, even impossible, to establish. Klarman and Pierceson should not be criticized for their inability to establish the causal effect of judicial decisions on homosexual marriage. But their books would be more interesting if they acknowledged this inability and tried to explain it. My own view is that what can be said about the causal role of the courts in this area is no better than guesswork, can be stated briefly, and would be unlikely to be amplified constructively by book-length treatment.
In the 1950s, when I was growing up, homosexuality was anathematized, including by most people who were otherwise quite liberal. Homosexuals had, as homosexuals, no rights; they were deemed sexual perverts; homosexual sex was illegal (though rarely prosecuted); homosexuals were formally banned from the armed forces and many other types of government work (though again enforcement was sporadic); and there were no laws prohibiting employment discrimination against homosexuals. Since homosexuality is much more concealable than race, homosexuals did not experience the same economic and educational discrimination, and public humiliations, that blacks experienced. But to avoid discrimination and ostracism, they had to conceal their identities and so were reluctant to participate openly in homosexual relationships or to reveal their homosexuality to the heterosexuals with whom they associated. Most of them stayed “in the closet.” Homosexual marriage was out of the question, even though interracial marriage was legal in most states. But not in all: Southern and border states continued to forbid such marriage without generating significant opposition elsewhere.
The “Stonewall Riots” of 1969, which kicked off the movement for homosexual rights, owed nothing to the courts.
By today’s standards, certainly, but even by the standards of the next decade, the 1950s were a prudish period. Divorce and premarital sex were widely reprobated, female virginity was prized, movies were censored, pornography was illegal. But then came the sexual revolution of the 1960s. The causality is uncertain, but it must have had something to do with improvements in contraception and with growing prosperity, which tends to create a demand for greater freedom, including freedom from religion, family authority, and convention.
Decisions by the Supreme Court in the 1960s establishing a constitutional right to use contraceptives both in and outside marriage, and in 1973, which established the abortion right recognized in Roe v. Wade, played a part in the sexual revolution, but probably a small one. The “Stonewall Riots” of 1969, which kicked off the movement for homosexual rights, owed nothing to the courts. The Supreme Court’s decision in Loving v. Virginia in 1967, invalidating laws against racial intermarriage, could have been, but was not, thought to have implications for homosexual rights. But the wide acceptance of sex outside marriage, and of oral and anal sex marital or otherwise, contributed to a growing acceptance of homosexual sex, which was traditionally non-marital as well as non-vaginal. With the decline of prudery, sexual practices formerly deemed “deviant” created less revulsion in the straight population. Developments in society and culture mattered a great deal more than developments in jurisprudence.
Most important was the gay-rights movement itself, which with growing success encouraged homosexuals to acknowledge their homosexuality publicly. It would never have occurred to me as a college student in the 1950s that I had ever met a homosexual (though I later realized that some of the students I had known, and one of my favorite professors, were homosexual); I did not fear or hate them, but I thought of them as alien beings. As they started to “come out” and were seen to be little different from heterosexuals other than in sexual preference (one might have begun to say about them what people used to say about Jews: they are just like everybody else, only more so), heterosexuals became more accepting of them. That in turn encouraged still more homosexuals to come out. A cycle of growing acceptance was created.
It became increasingly apparent, moreover, that homosexual preference is innate—a biological rather than a social phenomenon. (Homosexuality used to be thought the “selfish choice,” because it promised promiscuity with no risk of pregnancy.) Efforts by psychologists to “cure” it have been flops despite the disadvantages even in a tolerant society of being homosexual. Most parents of heterosexual children now realize that they don’t have to fear that their children will be recruited into homosexuality if homosexuals are allowed in public, as it were, rather than remaining closeted. Moreover, the homosexual population is small and is generally law-abiding and productively employed; and having a below-normal fertility rate, it does not impose the same costs on the education and welfare systems as the heterosexual population does. For all these reasons, it is hard to make a case for discriminating against them, apart from a religious case based largely on Roman Catholic doctrine (invoked in Justice Alito’s dissent in Windsor, quoting the official Roman Catholic line on homosexual marriage from the recent book What Is Marriage?, co-authored by Robert P. George), which is part of the larger mystery of why sex has come to play such a large role in some monotheistic faiths.
Litigation had little or nothing to do with the movement for homosexual rights until 2003, when Lawrence v. Texas overruled Bowers v. Hardwick, which had been decided in 1986, and invalidated laws criminalizing homosexual sex among consenting adults. Although the declaration of a constitutional right to engage in an activity should not be treated as a Good Housekeeping seal of approval of the activity, many people do treat it that way. Lawrence had potential significance for homosexual marriage, as was recognized by Justice Scalia in an angry dissent, though when it was decided, no state had yet legalized such marriage.
It was not that Lawrence intimated a constitutional right to homosexual marriage. Government can express its disapproval of what it regards as an immoral activity by withholding a subsidy (the material and psychological advantages of marriage over cohabitation can be viewed in that light) even when it is not permitted to do so by criminal punishment. The significance of the case was that, in creating a right to homosexual sex, it got people to thinking: if homosexuals have a right to have sex with each other, why shouldn’t they be allowed to marry? One might even have expected social conservatives, who disapprove of extramarital sex, to want to channel homosexual sex into marriage now that they could no longer forbid such sex, thus making homosexuality at least a little more “normal.” With the American marriage rate dropping fast—with marriage seeming to give way to cohabitation, as in Sweden, home of libertine socialism—mightn’t homosexual marriage even be thought a support for marriage generally?
After Lawrence, homosexuals could live together openly as couples anywhere in the United States without fear of prosecution. And if they had a right to cohabit, why not to marry? It began to seem arbitrary to deny them such a right, especially as some states—Vermont was the first, in 2000—were allowing homosexuals to form “civil unions” with all the rights of married couples except the right to call their relationship “marriage.” The denial of that right was equivalent to a state telling blacks that they could cohabit with whites and enjoy all the same rights as racially unmixed couples except the right to call their relationship “marriage.” That would be the purest, though not the most harmful, form of bigotry.
If there was a backlash to Lawrence, it was slight, because Lawrence wasn’t that big of a deal. For by 2003, there was virtually no enforcement of laws against homosexual sex, just as there was virtually no enforcement of the criminal laws, which are still on the books in many states, against adultery and fornication. Homosexual couples were living openly before Lawrence. States such as Texas, in which such laws were at least sporadically enforced, have still not authorized homosexual marriage, even though laws against homosexual sex can no longer be enforced at all. The question I said that Lawrence had raised—if they can cohabit, why can’t they marry?—was already in the air, because so many homosexuals were cohabiting openly by 2003.
If one turns from narrative to statistics, the significance of judicial decisions (and for that matter backlash) to homosexual marriage, seemingly slight, recedes further. The earliest public-opinion polling on attitudes toward homosexual marriage was in 1988. In that year roughly 11 percent of Americans favored allowing such marriage and 68 percent opposed it. (All these percentages are approximate, because no two public-opinion polls agree exactly.) Presumably the 11 percent included most homosexuals. Nobody knows the exact percentage of homosexuals in the American population, but the current estimate is that it is between 3 and 4 percent. Assuming that most of them support homosexual marriage, in 1988 fewer than 8 percent of heterosexuals thought that homosexual marriage should be authorized. By 1996 the figure had risen to 24 percent (I am subtracting 3 percent from the poll), with 68 percent opposed (so the percentage with no opinion was also dropping). By 2003, the year of Lawrence, the figures were 28 and 65 percent. The approval rate continued to rise, and by May of this year, the month before the Supreme Court’s two homosexual-marriage decisions, about 50 percent of poll respondents approved of homosexual marriage and slightly more than 40 percent disapproved. The increase in approval in the decade since Lawrence has been astonishing. And the approval rate is likely to continue rising, because it is already 67 percent for persons under 30, dropping to 38 percent for persons 65 and older. The difference is almost certainly generational, as there is no reason to think that aging affects one’s thinking about homosexuality.
All in all, the judicial role in the rise of homosexual marriage seems to have been quite modest.
Thirteen states now authorize gay marriage, as do fifteen foreign countries. The first state to do so was Massachusetts, in 2004. Next were California and Connecticut in 2008. Six of the thirteen have authorized it within the last twelve months. Republicans remain strongly opposed, and the Supreme Court is unlikely for some time to force homosexual marriage on states by declaring it a constitutional right. That would be one bombshell too many. The most the Court is likely to do (how likely I don’t know) is to force states that do not allow homosexual marriage nevertheless to recognize such marriages made in states that do allow it. Most states recognize marriages made in another state as valid under that state’s law even if not valid in the state asked to recognize those marriages. (Maybe the other state authorizes first cousins, or thirteen-year-olds, to marry and the state asked to recognize the marriage does not allow its own citizens to make such marriages.) The Supreme Court may decide not to allow the state to make an exception for homosexual marriages.
By invalidating the denial of federal marital benefits to homosexual marriages, the Windsor decision has increased the value of marriage to homosexuals: that is probably the biggest impact on the homosexual-marriage movement that the Supreme Court has had. Goodridge v. Department of Public Health, the decision by the Supreme Judicial Court of Massachusetts in 2003 that created a right to homosexual marriage (effective the following year) as a matter of Massachusetts constitutional law, may have had a greater impact on the homosexual-marriage movement than any U. S. Supreme Court decision, including Lawrence, although as Klarman explains, Goodridge provoked a backlash. It is too soon to tell whether Windsor will.
All in all, the judicial role in the rise of homosexual marriage seems to have been quite modest. Probably the courts have done little either to accelerate the trend in acceptance of such marriage or, through backlash, to retard the trend. In retrospect, the growing acceptance of homosexual marriage seems a natural consequence of the sexual revolution that began in the 1960s rather than an effect, even to a small degree, of litigation. That should come as no surprise when one thinks of another significant social and cultural development in America in the same era: the virtual disappearance of discrimination against Jews, Catholics, Irish Americans, Italian Americans, and Asian Americans, which also owed very little to litigation.
Richard A. Posner is a judge of the U. S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School.