Are the Courts Ahead of the Public on Gay Rights? (Time)
Are federal courts the best hope for gay rights? Even with Harry Reid promising to bring the repeal of "Don't ask, don't tell" to a Senate vote after Thanksgiving, many activists feel the judiciary is still their best avenue to win change. But could court victories end up backfiring and slowing the trend toward a wider acceptance of gays into American life?
In the 17 years since Hawaii's Supreme Court issued the first ruling in favor of gay marriage, it has been judges — not lawmakers, and certainly not the voters in 30-odd state referendums banning gay marriage — who have sided with same-sex couples seeking to wed. That's never been clearer than it is now, with three different federal opinions in favor of gay rights that together threaten to end America's long history of legal discrimination against gays. There was the decision in August to overturn California's Prop 8; a ruling from July by a judge in Massachusetts striking down the 1996 Defense of Marriage Act; and just last month, a federal judge in Riverside, Calif., ordered the U.S. military to stop enforcing its policy banning openly gay personnel from military services. No matter how the decisions fare on appeal — and arguments in the Prop 8 appeal will be broadcast live just two weeks from now — by any measure, gay-rights advocates have achieved more momentum than would have been thinkable only a couple of years ago.
But some legal scholars say history suggests that the courts, no matter what they decree, cannot persuade a reluctant public to embrace social change — in fact, they may even polarize the issue. "Ever since Brown v. Board of Education, it's been the underlying view of political liberals that victories in court will give them the social changes they feel are needed, and do it faster [than waiting for change to happen on its own]," Professor Mike Klarman of Harvard Law School tells TIME. "But such rulings have often brought significant political backlashes."
Complete article at Time : http://bit.ly/gdnXQx