The Backlash Thesis and Same-Sex Marriage: Learning from Brown V. Board of Education and Its Aftermath
Ball, Carlos A., The William and Mary Bill of Rights Journal
The last three years have been like no other time in the history of the gay rights movement. During that period, the U.S . Supreme Court held that states cannot criminalize gay sexual conduct,1 Massachusetts recognized same-sex marriages,2 and Connecticut created the institution of civil unions for lesbian and gay couples.3 In that same period, the President and many members of Congress endorsed a proposed federal constitutional amendment that would prohibit states from recognizing samesex marriages.4 In addition, fifteen states amended their constitutions to prohibit same-sex marriages, and most of those provisions also ban alternative forms of legal recognition (such as civil unions and domestic partnerships) of same-sex relationships.5 From a gay rights perspective, in other words, it seems as if lately every encouraging victory is soon followed by a troubling defeat.
This article attempts to make sense of the current period in the struggle for gay rights by putting it in a broader historical context. The article focuses in particular on an earlier period in American history when a judicial opinion, that of Brown v. Board of Education,6 prompted a severe political and legal backlash.7 There are interesting similarities between the backlash that followed Brown and that which has followed the Massachusetts Supreme Judicial Court's same-sex marriage opinion in Goodridge v. Department of Public Health.8 In fact, the gay rights movement can learn important lessons from these similarities. One lesson is that political and legal backlashes are a foreseeable consequence of controversial judicial victories that require majority groups to reassess in fundamental ways the manner in which they have in the past treated and understood certain minority groups. A second related lesson is that civil rights struggles in this country have traditionally consisted of moments of heartening progress followed by instances of discouraging setbacks.
The current backlash has created considerable anxiety within the gay rights movement as many have questioned whether the same-sex marriage litigation has backfired by, in effect, encouraging social conservatives to flex their political muscles to the detriment of lesbians and gay men.9 I argue in this article that despite the harmful backlash experienced by the gay rights movement following marriage cases such as Goodridge, lesbians and gay men are nonetheless better off as a result of those cases. The gains from the litigation, in other words, have so far outweighed the losses.
The article will proceed as follows. In Part I, I compare the period immediately after Brown with the one immediately after Goodridge to explore how the plaintiffs in both cases were faced with similarly crucial decisions about whether to moderate their demands for judicial relief in the face of growing political opposition.10 In Part II, I examine the similarities in the backlash that followed each opinion.1 1 Both opinions politically galvanized conservatives, leading to many changes in state laws, including the approval of several constitutional amendments.12 In Part III, I discuss what has become known as the Brown backlash thesis.13 That thesis holds that Brown did not, at least in the short run, contribute meaningfully to the undermining of segregation in the South because ofthe massive resistance that the opinion provoked among white southerners.14 I note in Part III that some have made similar arguments in the aftermath of Goodridge by contending that the opinion has been, at least in the short run, largely unhelpful to the attainment of gay rights goals because of the backlash that it has provoked among conservatives.15 In Part IV, I disagree with gay rights supporters who have criticized same-sex marriage cases such as Goodridge by arguing that the benefits arising from the lawsuits have so far outweighed the backlash-related costs.16 I finish Part IV, however, by suggesting that the gains from the marriage litigation are unlikely to continue at the same pace in the future and that the same-sex marriage movement must begin to pay greater attention to the legislative and political arenas and (proportionally) less attention to the courts. …