Back in 1986, in a case called Bowers v. Hardwick, the Supreme Court upheld as constitutional a law that made gay sex illegal in Georgia. On June 26, the Supreme Court reversed that decision, striking down an antisodomy law in Texas as unconstitutional. The surprising majority decision by usually conservative Justice Anthony Kennedy was an elegy to the privacy and dignity of personal relationships among all citizens, including gays targeted by the law.
It was also, despite appearances, probably a bad result for gay rights.
Activist decisions by courts rarely help progressive causes. Judicial activism achieves very little but merely empowers the biases of elite judges, demobilizes progressives in favor of litigation, and encourages electoral backlashes that erase far more gains than our won in the courts.
Gay rights was already winning: The fact is that today, whereas half the states had anitsodomy laws similar to Georgia in 1986, only 13 states still have such laws. This is an issue that is being won legislatively and where the laws are rarely enforced even in most states where the laws are still on the books. In Dade County, where the first major gay civil rights ordinance was voted down back in the 1970s, a similar ordinance was approved at the ballot this past year. Civil unions and benefits for domestic partners are being approved by state legislatures.
The antigay activists are losing their majority at the ballot box and the message is that they are a moral minority.
But with the Court intervention, the Right will be able to position themselves as "defenders of democratic choice" as if they would prevail but for an undemocratic court decision. And they will benefit from a backlash in attacking other gay issues, where they were losing before.
The case of gay marriage: Look what happened with gay marriage. There was no rightwing legislative agenda to ban it before a Hawaiian Supreme Court upheld it as a constitutional right in that state. Suddenly states across the country rushed to ban something that was not even an active issue previously.
And the fact that the bans were put in state constitutions will make it just that much harder to pass gay marriage when we are able to build majorities to support the idea in coming years, because now we will need to pass new constitutional amendments rather than just majority legislation.
The Hawaii court decision gained little, since there are ways to override court decisions, but the backlash cost the movement probably years in pushing forward full gay marriage. If the conservatives take advantage of backlash to move forward on a national amendment to bar gay marriage, the result could be decades of delay in gaining full equality for gays.
Why judicial activism fails progressives: For those who note that conservatives happily pocket their gains from rightwing judicial activism, the hard fact is that what works for the rightwing does not work for progressives. Most conservative judicial activism reinforces the power of the already economically and politically powerful, so it's hardly surprising that their increased power from such decisions overwhelms any backlash from progressives hurt by it.
Which goes to why judicial activism is such a bad thing for progressives overall. In the history of the US, from early in the 19th century until 1937, most judicial activism was in support of conservative property interests, including the slavery decisions which were framed in terms of property rights. And because those decisions reinforced the power of the already powerful, conservative judicial activism was very effective. More recent conservative activism works similarly. If you already have dominant economic or social power, judicial activism can just reinforce your non-democratic power to manipulate the system.
The problem for progressives is that their ideal judicial activism supports the rights of those without already existing power. Which means that there are often ways for conservatives mobilized by those decisions to circumvent them when progressives have not yet developed the full majoritarian support to defend them.
Take the example of the civil liberties decisions protecting the rights of defendants decided by the Warren Court in the '60s. The goal seemed to be to end the arbitrary oppression of the criminal system against the poor and powerless.
But what is the result decades later? An explosion of the prison population due to an expanded list of crimes, especially tied to the drug war, that lead to a massive expansion of poor and minority folks in prison or controlled by the probation system. At a time of legislative gains for the poor through the Great Society, the Warren Court decisions fed a false sense that the system protected the guilty, helping feed a backlash of "anti-crime" legislation -- fed by powerful corporate interests benefiting from the prison industry - that has devastated poor communities.
How the courts derailed the ERA: And where progressives are building majority power, a partial court decision can derail further more far-reaching gains. It's worth considering why the Equal Rights Amendment (ERA) failed in the 1970s. At least one reason is the Supreme Court jumping in with partial (but not full) constitutional protection for women in some early 1970s cases. Once some protection was passed, it lessened the energy supporting the ERA, so a short-term Supreme Court victory became a far larger constitutional defeat. This interference with a mass democratic mobilization around the ERA was not unremarked by the Court members themselves. As Justice Powell argued in his concurrence in a key early 70s case called Frontiero, which established some of the basic protections for women under the Constitution:
The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. ... By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment.
And partly because the Court acted, what looked to be a rapid and overwhelming approval of the ERA became a defeat as the rightwing rallied against what were seen as antidemocratic Court decisions.
Progressives are actually winning on gay rights issues, slowly at times but surely. A Court decision broadly overturning Bowers will actually change little substantively, but could cost progressives politically in a host of ways.
It's hard to turn down a short-term win on a matter of justice through the courts, which is why both Right and Left can't help praising judicial activism that helps them. But it rarely means anything without majoritarian support in the long-term. And if you have majority support for your issues, you don't need the courts.
Nathan Newman is a labor lawyer, longtime community activist, and author of the recently published book Net Loss [Penn State Press] on Internet policy and economic inequality. Email firstname.lastname@example.org or see www.nathannewman.org.