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Gay Rights: Are Courts Ahead of the Public?

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By Tanya Roth, Esq. on November 30, 2010 5:54 AM

Are the courts ahead of public opinion when it comes to gay rights issues such as same sex marriage and don't ask, don't tell? And if they are, will the courts lead the way to social change, or create a backlash? 

These issues are relevant questions, as California's Proposition 8 heads to arguments before the 9th Circuit Court of Appeals, Massachusetts courts rule the Defense of Marriage Act unconstitutional, and the Obama Administration deals with don't ask don't tell in both the courts and Congress.

This convergence of activity on gay rights issues caused Time Magazine to ask, if the courts leap ahead of public opinion on controversial social issues, can it cause more harm than good?

Professor Mike Klarman of Harvard Law School said the proof is in the history of major social questions such as school segregation and abortion rights. Klarman says the Supreme Court decisions in Brown vs. Board of Education (to force de-segregation of schools) and Roe v. Wade (confirming the right to legal abortion) led to a chill on more moderate voices and a polarization of the debate.

For instance, Klarman tells Time, the most immediate impact of the Brown v. Board of Education rulings was to silence the racial moderates in the South and embolden hard-core racists. "There were many areas of civil rights that were easier issues," he says.

Klarman sees parallels in the same sex marriage and gays in the military debates. He tells Time that the 2003 decision that legalized same sex marriage in Massachusetts was the impetuous for the wave of gay marriage bans enacted in 11 states. "There was a tremendous amount of backlash, with significant short-term political effects," says Klarman.

And yet, change happens, even if it requires a long-term fight. An important idea to remember as the courts delve into the gay rights issues in upcoming months is not whether they reflect, ignore, or race ahead of public opinion, but that they are separate from it. 

The founding fathers, after all, hoped a non-elected judicial branch would be separate from the will of the majority. The opinion of the people is reflected in the legislative and executive branches. Only the balance of judges (who are not dependent on public opinion), combined with legislators (who try to follow it), can lead to change.

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