Thoughts on Perry v. Schwarzenegger

I came across this article in the New Yorker by way of my professor in a class called Social Change Lawyering. I thought it was a pretty good follow-up to my post last week discussing Theodore Olson's involvement in the California case and wanted to pass it along.

Since it's the New Yorker, it slants left, but it's a good attempt to give an overview of what's going on. The first part discusses the issue as it stands and the second part is quite a long history of how the plaintiffs became the plaintiffs in this instance.

What I found particularly compelling was the discussion of whether Olson's involvement is really a good thing for the movement in favor of gay marriage. The consensus among activist groups is that, while slow, the legislative process is working and that they'd rather see a legislative solution than a judicial one. For example, since Hawaii's supreme court found bans on gay marriage to be illegal, 29 states amended their constitutions to legalize such prohibitions, where there is no indication that they would have felt it necessary to do so if they didn't fear judicial ruling to the contrary. You can take this as a legislative victory if you're anti gay marriage, or as a defense of incremental, gradual progress if you're for it.

As another example, it mentions how Roe v. Wade was really a terrible moment for pro-choice activists. The Court was way ahead of science and in front of public opinion in Roe, and the result was a sloppily defended opinion which really polarized the two camps even further. In fact, funding and support for pro-life activism boomed after Roe and abortions are generally less available and/or are more restricted and regulated than they were previous to it. Again, take that how you will.

I bring this up only to point out that although many criticize the liberals' penchant for using the courts to circumvent the legislative process and thwart democracy, the fact is that in honest moments it's often not that good of a thing for their cause. This is part of why I've always defended the judiciary as being more prone to exercise restraint than most people give them credit for and is why I believe that even if Perry v. Schwarzenegger gets to the Supreme Court they'll opt not to decide on it or will decide to uphold it (It'll depend on what the District Court and later the Appellate Court have to say on the subject). They've learned from Roe that deciding at the wrong time only further polarizes the issue and doesn't necessarily put them on the right side of history.