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Ruth Marcus: The politics of Roe and gay marriage

BY RUTH MARCUS Published: April 6, 2013

But there is a difference between “too far, too fast” and “never ever,” which is why the Democratic Process Above All argument is wrong. The point of constitutional protections is that some rights are too fundamental to leave to a majority's whims and prejudices.

The right of a woman to decide whether to bear a child is one. The right of two people to marry is another. There are people who will never agree and states in which they constitute a majority. The Constitution shields individuals from these majorities. If backlash to the rulings of “unelected judges” ensues, so be it.

But there are reasons to doubt the backlash narrative on both abortion and same-sex marriage. Linda Greenhouse and Reva Siegel of Yale Law School have argued convincingly that the politicization of the anti-abortion movement pre-dated Roe and that the movement to relax abortion laws had stalled in the years before the ruling.

At the same time, they write, the court ruled in sync with public opinion, not in contravention of it. A Gallup poll then found 64 percent agreeing that “the decision to have an abortion should be made solely by a woman and her physician.”

Harvard Law School's Michael Klarman, who believes that Roe “catalyzed a powerful right-to-life movement,” nonetheless predicts that a broad ruling on same-sex marriage would be less incendiary, in part “because the effect … on others' lives is so indirect.” That sounds right: Those who view abortion as murder understandably feel more intensely than those who express moral distaste for same-sex marriage.

In short, the justices shouldn't worry about the threat of backlash. They should focus on their constitutional role as backstop.



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