Recently, you may have heard, that the voters in California approved an amendment to California Constitution. It was a bitter defeat for the gay rights advocates around the country who urged voters in California to go to the polls and “Vote No on Prop 8″. In the end, however, they were defeated with 52% voting in favor of prop 8 and 48% voting against. With the voter turnout at around 79%, there seemed to be a good representation of the public opinion on gay marriage with in California and with it the real target of gay rights advocates: not the ballot but the hearts and minds.
Within the LGBT Rights Movement, marriage has been the recent coveted prize. Though there are plenty of directions the movement could have taken, it appears as though the liberal camp of the movement has gathered the most speed in pushing for the victory of marriage between a homosexual couple. Plenty of arguments can be made as to which battles should be fought and what direction the movement should go into but I just want to touch on a single aspect of this debate.
The question of marriage to me, someone who does not plan on getting married and views it as an arcane and archaic social norm, does not care much about it. Certainly the rights given to married couples should be given to homosexuals who want to wed. However, Prop 8 is not a fight for those rights but rather the right to be “married”. We can go on forever with the theoretical arguments for and against the victory for a word, etc.. etc.. but i would like to assume a) “marriage” is a victory that is positive and b) “marriage” is a victory that is desired by a large portion of the LGBT community.
So, now that in California the voters decided to make the word ‘marriage’ inapplicable to homosexuals, the Movement have started to push for protests and for an appeal. They want to argue in court that the decision should be overturned. However an interesting book entitled The Hollow Hope: Can Courts Bring About Social Change? makes a strong case against the idea that the Courts will actually help legalize gay marriage.
The book is largely framed around the US supreme court and it uses cases studies (Roe v. Wade and Brown v. Board) to make its claim. Largely, the courts decision, however groundbreaking and “daring” frequently fails to actually make the desired changes. In the examples the author, Gerald N. Rosenberg, uses there seem to be no correlation between court decision and implementation. Rather, social movements themselves implement the change. So there wasn’t much school integration after Brown v. Board, only after the Civil Rights movement, eg.
Does the struggle for gay/lesbian marriage follow the same logic? On the surface it does not appear to. If they courts decide to rule in favor of opposing Prop 8 and even go so far as to legalize same sex marriage, wont lesbians and gays just go and get married and not care about the public opinion and what it has to say? Certainly! But there are two more questions: 1) is the struggle for gay marriage a strategic reform used to win over the “hearts and minds” of those who currently oppose same-sex marriage ? 2) Are the courts going to decide in your favor if the public opinion is not on your side?
The first question speaks to strategy. The second speaks to the book’s argument. Together, the answers to these questions may push same-sex marriage advocates to rethink their work and their strategy.
If same-sex marriage is the way of changing opinion, which it very well may be, is a court decision going to change the opinion or is it the other way around. Will positive public opinion, instead, change the courts decision and legalize marriages. The book argues this latter claim: change opinion and the courts will soon follow.
The argument is worth checking out.
