A group called United for Marriage is making a splash by calling for a massive demonstration in Washington, D.C., outside the Supreme Court and across the country on March 26 and 27.
"Let’s give people hope and create lasting change by using the voice of the people!" the group’s statement reads. But that’s exactly why I am so uncomfortable with the group’s intentions.
The whole purpose of the Supreme Court has historically been specifically not to listen to the "voice of the people." The court didn’t listen to the voice of the people when it ruled against segregated schools in Brown v. Board of Education. The court did not listen to the voice of the people when it ruled in favor of legalized abortion in Roe v. Wade.
The court has ruled infamously in favor of the voice of the people, such as the 1857 Dred Scott decision, which ruled that slaves were not protected by the U.S. Constitution and slavery could be expanded into the newly opened western territories. The court has also ruled many times against popular opinion in matters of free speech, such as the 1977 ruling that struck down a injunction against American Nazis marching the Chicago suburb of Skokie, traditionally Jewish and home at the time to many Holocaust survivors.
The court faced withering criticism when it ruled in 1959 that D.H. Lawrence’s novel "Lady Chatterly’s Lover" could be shipped through the U.S. Mail, in effect striking down obscenity laws for good. As a 2009 op-ed piece in the New York Times marking the 50th anniversary of the ruling noted, "As recently as 1957, the Supreme Court had ruled in Roth v. United States - a case involving a bookseller who sent erotic literature through the mail - that the First Amendment’s guarantees of free speech did not apply to obscenity. The case against "Lady Chatterley’s Lover" seemed cut and dry; whatever the book’s literary merits, it met the legal definition of obscenity."
The court certainly listened to the voice of the people when it ruled in favor of maintaining sodomy laws -- in effect, outlawing private, consensual gay and other sexual activity -- in Bowers v. Hardwick. The court then reversed itself when it struck down sodomy laws two decades later in Lawrence v. Texas, even though at the time a solid majority of Texans certainly believed that it was necessary for the public good that two gay men should face penalties when Houston police burst in on them having sex in a private home.
The court must not listen to demonstrators outside its doors, whether for good or ill. I took to the streets of Lower Manhattan to protest Proposition 8 and marched across the Brooklyn Bridge in support of marriage equality in New York State. But that was in response to laws, and laws are made by elected representatives, or by direct democracy, as with Proposition 8.
The judiciary must be above public opinion, the Supreme Court supremely so.
There’s another argument, that this is wasted energy. At this point in time, I believe it is more effective to lobby individual state legislatures and canvass local electorates than to have yet another march on Washington. I went down the D.C. for the March on Washington in 1993, where the sense that this was an unnecessary misdirection of time, energy and money was palpable (although seeing the AIDS Quilt on the Mall was shattering, and the party at the Post Office Pavilion was fierce).
I know many will disagree vehemently with me. I believe that they are sincere and well meaning. I am also fully aware of the tradition of groups demonstrating in front of the Supreme Court. But at this point in time, I’m not convinced that it’s necessary for us to have to make a show of strength on these dates at this place when the November elections showed such clear signs of momentum in our favor.
If you believe I’m wrong, please let me know the reasons. But please argue the argument and avoid ad hominem attacks against me for thwarting the ultimate goal of marriage equality.