As we all have been informed by many esteemed commentators, the highly charged nature of the abortion debate in the United State is purely due to Roe v. Wade, because social conservatives never thought to oppose women’s rights until the courts got involved. Anyway, Canada recently presented another good test case for the many people (on both sides of the issue) who continue to believe this argument, in spite of the paucity of empirical evidence or theoretical justification. The Canadian courts have recently upheld a number of gay rights claims, and because of judicial decisions gay marriage was legal in 8 out of 10 provinces. What was the public’s reaction to this radical judicial activism? Why, of course, to become generally more supportive of gay marriage, culminating in the federal government granting a national right to same-sex marriage.
Now, to be clear, the lesson here is not that litigation in the United States would be equally effective. Rather, the point is that the opposition to gay marriage in the United States is not plausibly linked to judicial review, per se. Issues like abortion and gay rights are divisive in the United States because they’re divisive, not because the Supreme Court has been involved. Progressives who think that you can mitigate opposition by using the right political institutions are seriously misguided. Cultural reactionaries, as they have proved again and again, while oppose such social changes change no matter how they come about, and progressives should use all the tools they have available.