Shadow of Roe v. Wade Looms Over Ruling on Gay Marriage
posted at 3/24/2013 12:23 PM EDT
Progressives have no qualms about having liberal judges dictate their liberal views upon the entire country...but even they recognize that such abuse of the judiciary can backfire politically, and actually hurt their cause...see Roe v Wade.
Gay marriage advocates never tire of arrogantly comparing their cause to the civil rights struggle..but even in that realm, the impact of Supreme Court decisions are overemphasized. In a democracy, the battle was won by Legislative action, specifically the Civil Rights Act.
"Judges, lawyers and scholars have drawn varying lessons from [Roe v Wade], with some saying that it was needlessly rash and created a culture war.
Justice Ruth Bader Ginsburg, a liberal and a champion of women’s rights, has long harbored doubts about the ruling.
“It’s not that the judgment was wrong, but it moved too far, too fast,” she said last year at Columbia Law School.
Briefs from opponents of same-sex marriage, including one from 17 states, are studded with references to the aftermath of the abortion decision and to Justice Ginsburg’s critiques of it. They say the lesson from the Roe decision is that states should be allowed to work out delicate matters like abortion and same-sex marriage for themselves.
“They thought they were resolving a contentious issue by taking it out of the political process but ended up perpetuating it,” John C. Eastman, the chairman of the National Organization for Marriage and a law professor at Chapman University, said of the justices who decided the abortion case. “The lesson they should draw is that when you are moving beyond the clear command of the Constitution, you should be very hesitant about shutting down a political debate.”
Justice Ginsburg has suggested that the Supreme Court in 1973 should have struck down only the restrictive Texas abortion law before it and left broader questions for another day. The analogous approach four decades later would be to strike down California’s ban on same-sex marriage but leave in place prohibitions in about 40 other states.
During closing arguments in the [Cal gay marriage] case, Judge Walker made it clear that he, too, was working in the shadow of the abortion ruling. He said the Roe case “has plagued our politics for 30 years” because “the Supreme Court has ultimately constitutionalized something that touches upon highly sensitive social issues.”
“Isn’t the danger,” [pro-gay marriage] Judge Walker asked Theodore B. Olson, a lawyer for the two couples challenging the ban, “not that you are going to lose this case, either here or at the court of appeals or at the Supreme Court, but that you might win it?”