Culture Change or Culture War?

There are reasons to think that this election will be different from 2004. For one thing, John McCain doesn’t have the kind of position on same-sex marriage likely to attract the absolutists on the religious right. McCain, like Barack Obama and Hillary Rodham Clinton, is personally opposed to same-sex marriage but — like both Democratic candidates — thinks the matter should be left to the states.

The larger question is that, with the exception of Florida, most of the states likely to react to the California ruling responded to Massachusetts four years ago. Twenty-seven states adopted bans on same-sex marriage; 11 adopted the prohibition during the last presidential election and went for Bush over John Kerry.

Then there’s the matter of demographic change. Obama’s candidacy has drawn an unprecedented number of young voters into the process, and every reliable poll shows that younger Americans, whatever their regional or religious background, overwhelmingly regard marriage for gays and lesbians as a civil right. It’s a pretty clear trend across the country. In part, that’s because the success of civil unions and partnerships has let millions of Americans see their gay and lesbian neighbours functioning in relationships that are marriages in everything but name.

All these reactions are calculated according to a campaign time frame that, nowadays, parses itself in media-driven nanoseconds. But it’s the longer-term reaction that will be most consequential. Over the last half century, there have been two towering examples of what critics like to label ‘judicial activism’ — the US Supreme Court’s 1954 ruling in Brown v. Board of Education that began the dismantling of Jim Crow segregation laws, and the 1973 Supreme Court decision in Roe v. Wade that legalised abortion.

Admirers of those opinions esteem them as exercises in judicial realism rather than activism, contending that the justices cut through the deadwood of impacted tradition and calcified precedent to bring the law into conformity with a dynamic nation’s evolving conscience.

Brown now is universally accepted by serious-minded people, while Roe has come to be regarded as the opening salvo in that amorphous struggle known as the culture wars, a decision to which a substantial minority of Americans from all walks of life remain unreconciled.

Part of the explanation may have to do with the essence of the questions at issue. Jim Crow was an entrenched system in the South and a de facto reality throughout much of the North when Warren wrote his opinion. Two successive presidents would have to call on federal troops to give his ruling legal force in the states of the old Confederacy. That’s no small thing, but the fact remains that the country as a whole was ready to change its mind about race, ready to be persuaded by the court, by the heroism of the civil rights movement and by the experience of real life. As racial barriers fell, people understood that equal rights and opportunities were making the country a better, more just place to live. The Brown decision won acceptance because its benefits were evident to anybody with eyes.

But how you feel about Roe ultimately turns on a question — when does life begin? — that, so far, cannot be resolved in the world of observable phenomenon from which we derive mind-changing experience. Beyond that question, moreover, is an even more fundamental one about when ‘life’ of a general or potential sort becomes ‘life’ in the individual sense the law can recognise. It’s a situation in which a fair-minded decision essentially involves where to assign the benefit of the doubt. Thus, the never-ending disagreement over abortion.

So, will In re Marriage ultimately be another Brown, or another Roe?

Demographics — the numbers of young Americans who believe same-sex marriage is a civil rights issue — and the widespread acceptance of civil unions by people of all ages strongly suggest the former.