Stephanopoulos on Why the Courts, Not Lawmakers, Will Deliver Gay Marriage

Dear Justice Kennedy
Nicholas Stephanopoulos
Slate
April 1, 2013

One of the few persuasive points that opponents of same-sex marriage made in last week’s Supreme Court arguments was that gay couples should rely on the political process—not the courts. In the argument over California’s same-sex marriage ban, passed by voters in 2008, Justice Samuel Alito asked, “Why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?” The next day, in the argument over the Defense of Marriage Act, enacted by Congress in 1996, Chief Justice John Roberts added a twist to the popular sovereignty point. “The lobby supporting the enactment of same-sex marriage laws in different states is politically powerful,” he said, adding that “as far as I can tell, political figures are falling over themselves to endorse your side of the cause.”

Although it’s superficially appealing, the argument for judicial deference is wrong. The ability of gay rights groups to win ordinary political battles is actually quite limited. Much more common than the imposition of pro-gay policies on a disapproving majority is the reverse scenario: the failure to enact such policies even when they’re supported by a popular majority. Judicial intervention may therefore be necessary because, regrettably, this is not an area in which the political process can be trusted.

In pioneering recent work, Columbia political scientists Jeffrey Lax and Justin Phillips have found that politicians exhibit a sharp conservative bias on gay rights issues. That is they do not become at least 50 percent likely to vote in a pro-gay direction until their constituents’ support for doing so is substantially higher than 50 percent. In the 2010 vote on repealing the military’s “don’t ask, don’t tell” policy, for example, House members became 50 percent likely to vote yes only when 60 percent of their constituents supported repeal. In the 2007 vote on the Employment Non-Discrimination Act, which would have banned anti-gay discrimination by employers, House members were more likely to vote yes only when 70 percent of their constituents favored the bill.