New York Times tells Supreme Court Liberals to go narrow on gay marriage
The New York Times, in its role as the bible of the liberal mindset, instructs the liberal justices of the Supreme Court to avoid a sweeping ruling imposing gay marriage across the nation by judicial fiat. And it cautions its readership to be careful what they wish for from the court. That's the gist of this news analysis article by Adam Litvak, titled "Shadow of Roe v. Wade Looms Over Ruling on Gay Marriage." The word "shadow" gives away the game.
The piece prominently features the ideas expressed by Justice Ginsburg, in essence that Roe v Wade pre-empted the political process, short circuiting a transition already underway, and creating an enduring political movement in opposition to the judicial overreach:
The Supreme Court's decision was a perfect rallying point for people who disagreed with the notion that it should be a woman's choice," she added. "They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges."
That general view is widely accepted across the political spectrum, and it might counsel caution at a moment when same-sex marriage is allowed in nine states and the District of Columbia and seems likely, judging from polls, to make further gains around the nation.
"Intervening at this stage of a social reform movement would be somewhat analogous to Roe v. Wade, where the court essentially took the laws deregulating abortion in four states and turned them into a constitutional command for the other 46," Michael J. Klarman, a law professor at Harvard, wrote in a recent book, "From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage." Mr. Klarman was a law clerk to Justice Ginsburg when she served on the federal appeals court in Washington.
The piece does present opposing views:
But an article that will appear in Discourse, an online legal journal published by The UCLA Law Review, proposes a different account. "The Roe-centered backlash narrative, it seems, is the trump card in many discussions of the marriage cases," wrote Linda Greenhouse, a former New York Times reporter who covered the court and now teaches at Yale Law School, and Reva B. Siegel, a law professor there.
"Before Roe," they wrote, "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 the decision, they added, "political realignment better explains the timing and shape of political polarization around abortion than does a court-centered story of backlash."
In effect, they stress that the opposition was already energized. Maybe so, but it cannot logically be argued that rallying against one focal point, an undemocratic judicial fiat, didn't add a lot of fuel to the fire. All the energy that was distributed across the nation now could come together.
Greenhouse, a Harvard Law School graduate, in her days as the Times' Supreme Court correspondent was so powerful that people joked about the "Greenhouse Effect" making justices more liberal over time, when they joined the Court and started being affected by her articles. Everybody they knew read them. So the Times, with some justification, sees its institutional power extending to shaping the opinions of the Court.
Because this article will be read by editors at practically every MSM outlet, the word will be going out to hope for a narrow rejection of Prop. 8, that would only invalidate the California statute, and let the process work itself out, because gay marriage is winning already. The younger generation has been indoctrinated by the schools and popular culture, the media are in full support, and the civil rights paradigm works persuasively, unless you care to go through several steps of reasoning in explaining the problems with that analogy. That never works on a mass level.
Be careful what you wish for.