I recently commented on the significance of the social movements behind recent statewide ballot initiatives for marriage equality for the Supreme Court’s upcoming decisions on DOMA and/or Prop 8.
Linda Greenhouse has a piece on the Opinoinator Blog reflecting on a similar theme.
But consider this: Proposition 8 was adopted by California voters four years ago by the narrow margin of 52.3 percent, after major mobilization by the religious right. If that referendum had been held not in 2008 but last week – on the day the religious right failed to work its will in Maine, Maryland, Minnesota or Washington – there is no chance it would have succeeded in the state of California. With nine states plus the District of Columbia now recognizing same-sex marriage, the intervening four years have made an enormous difference. Without the Supreme Court’s saying a word, the popular understanding of equality has evolved with near lightning speed and invested the constitutional guarantee of equal protection with new meaning.
The question of how social movements create constitutional meaning outside the courts is deeply intriguing and crucially important, and is currently producing a rich academic literature that’s well beyond my scope here. My colleague Reva Siegel has done pathbreaking work on this question, tracing, for example, how the Second Amendment argument for private gun ownership as a constitutional right evolved far outside the Supreme Court and won the day there in 2008 against odds that not long before had seemed insurmountable.
When the history of how same-sex marriage became the law of the land is eventually written, as it will be in the not too distant future, there will be many turning points to mark. The Supreme Court’s 2003 decision in Lawrence v. Texas, which held that gay relationships could not be criminalized, will certainly be one landmark. But last week’s election results, when voters in four states had the choice to say yes or no to marriage equality and said yes in all four, will stand, I think, as the more important development. It didn’t necessarily tell the justices how to decide the cases now on their docket. But in showing them that times are changing, it told them a lot.
A large thrust of my scholarship on the ACA case is how a social movement mobilized around a vision of the Constitution.