As advocates prepare for oral arguments in the challenge to California's Proposition 8 and the federal Defense of Marriage Act (DOMA), the right-wing media, typified by The Wall Street Journal, is wrongly pushing the idea that ruling in favor of same-sex couples would lead to the problems they claim resulted from the Court's Roe v. Wade decision, which struck down laws banning abortions.
Perry v. Hollingsworth, which will be argued on March 26, is a challenge to a California constitutional provision that excludes same-sex couples from marriage. Windsor v. U.S., to be argued March 27, challenges a federal statute, Section 3 of DOMA, which denies married same-sex couples and their families protections and benefits provided to different-sex married couples under federal law.
Some in the right-wing media have taken this opportunity to push a parade of falsehoods about marriage equality. For example, after Sen. Rob Portman (R-OH) announced his support for marriage equality, which he attributed to having an out gay son, WND editor Joseph Farah wrote “I guess we should all be grateful Rob Portman's son didn't choose to become a polygamist or a serial killer.” Fox News contributor Cal Thomas promoted the same myth that marriage equality leads to polygamy.
However, with support for marriage equality rapidly on the rise, this faulty logic is not likely to persuade a majority of Americans or of the justices. The right-wing media have pivoted to another scare tactic: if the Court strikes down democratically-enacted laws, then the country will have a political and cultural backlash similar to the one they say the Court unleashed in Roe v. Wade, which struck down abortion bans 40 years ago.
Radio host Rush Limbaugh attempted to draw this comparison between Roe and the gay marriage cases. On the March 25 edition of his radio show, Limbaugh claimed that the reason “abortion so roils our culture is that it hasn't been democratically decided. The Supreme Court, nine people in black robes just decided one day that abortion is in the Constitution, and that has led to constant acrimony.”
Former federal Judge Michael McConnell invoked a similar argument when he wrote in an op-ed for The Wall Street Journal:
We learned from Roe v. Wade that the Supreme Court endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution. The court sometimes intervenes when the legislatures of the 50 states are approaching a consensus. When it jumps into a live political controversy, the justices look like they are acting like legislators.
A March 25 Wall Street Journal editorial states that “the two cases before the High Court are less about the institution of marriage than the sanctity of democratic institutions and the proper role of the courts.” It warns against the Justices interrupting “the give-and-take on contentious moral and social issues the Constitution is designed to encourage.” It compares this possibility to abortion:
The Supreme Court does not have a good record legislating cultural change. A ruling on behalf of same-sex marriage could enshrine Hollingsworth and Windsor with Roe v. Wade, the 1973 abortion decision that imposed a judicial diktat even as laws in many states were liberalizing. Instead of finding a rough consensus inside the political mainstream, abortion became an all-or-nothing combat that still rages.
This characterization of abortion laws 40 years ago is flatly inaccurate. As Linda Greenhouse, a veteran Supreme Court writer and lecturer at Yale Law School, and Yale Law Professor Reva Siegel wrote,
Before Roe, despite broad popular support, liberalization of abortion law had all but come to a halt in the face of concerted opposition by a Catholic-led minority. It was, in other words, decidedly not the case that abortion reform was on an inevitable march forward if only the Supreme Court had stayed its hand.
After Roe: The entanglement of abortion in party realignment explains how, over time, Republicans and Democrats came to switch position on the abortion issue, leaders before base, and assume their current polarized positions on abortion, an evolution that took nearly twenty years after the Court handed down Roe. Our paper argues that when you line up the evidence, political realignment better explains the timing and shape of political polarization around abortion than does a court-centered story of backlash.
To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate pre-history of Roe v. Wade is: no. The abortion conflict escalated before the Supreme Court ruled.
And because a strong majority of Americans believes that Roe should not be overturned, Roe might not be a particularly persuasive cautionary tale.