U.S. Supreme Court: Lead, follow or get out of the way?

Does the U.S. Supreme Court lead the way in social change, or does it simply “constitutionalize” changes in the way Americans view individual rights? That was the crux of a wide-ranging discussion at UB Law School on Nov. 20 — the day that the governor of Illinois made that state the 16th to recognize same-sex marriage.

Lucinda Finley, Frank G. Raichle Professor of Trial and Appellate Advocacy in the law school and UB vice provost for faculty affairs, discussed the push toward marriage equality in the context of two epochal Supreme Court decisions: Brown v. Board of Education in 1954 and Roe v. Wade in 1973.

Her presentation was sponsored by the American Constitution Society, a progressive student organization.

Finley, who has argued before the Supreme Court on behalf of abortion providers, said the Roe decision has spawned a “backlash theory” that asserts that passionate debate about abortion rights continues because the court’s decision was ahead of public opinion on the issue. The assumption, she said, is that “if it weren’t for the dastardly Supreme Court, abortion would be an utterly uncontroversial, politically happily accepted issue in American society.” The theory goes on to say that the court decision “short-circuited the political process” and created the national right-to-life movement.

The Roe backlash theory, Finley said, has become conventional wisdom, as evidenced when the 8 District Court judge hearing the Hollingsworth v. Perry case — which eventually overturned California’s Proposition 8 barring same-sex marriage — worried aloud that overturning Prop 8 would create a continuing controversy over that marriage equality.

But, Finley said, the backlash theory “is just not borne out by historical fact.”

It was almost a decade after Roe, she said, before abortion providers found themselves the target of violence. (By contrast, the Brown decision provoked violent protests that in some places had to be quashed by the National Guard.) And the state legislative process was far from paralyzed on the abortion issue; pressure from the Catholic Church led to a series of bills seeking to restrict abortion rights, a process that continues today.

“The backlash theory says that constitutionalizing the issue took it away from the people,” Finley said. “But more bills are introduced in state legislatures on abortion each year than any other issue. So they didn’t shut off the democratic process in state legislatures. The only thing they took off the table legislatively is outright banning — criminalizing abortion. If anything, the Supreme Court could be criticized for spawning an even more intensified political process.”

Also, she said, beginning with the 1972 elections, the Republican Party poured energy into “wedge issues” around race, abortion and gay rights in an effort to win support from socially conservative Democrats and take advantage of the organizing power of the Southern evangelical church. Southern Baptists and evangelicals, she said, were energized by a new strain of theology that encouraged believers to involve themselves in the political process.

As well, Finley said, the issue of abortion rights is “inextricably tied up with deep-seated cultural feelings about the role of women. There is still a lot of deep-seated anxiety in our society about female sexuality and its link to reproduction and attempts to delink it from reproduction.

“It was a complex interaction of factors that made Roe controversial,” Finley said. “I’m not saying Roe was irrelevant in the controversy and social movement activism on both sides. It did become a galvanizing cry of organized opposition.”

But, she said, as proponents ponder their strategy for what they hope eventually will be a nationwide standard for marriage equality, “the specter of the Roe backlash theory remains very potent.”

She acknowledged that the court today “has its finger in the political wind. I do think it’s going to wait awhile until more states, either legislatively or judicially, have accepted gay marriage. And I think as more states wind up in the marriage equality column, more and more people who have an instinctual opposition to it realize that if their marriage crumbles, it’s not because of the nice gay couple who live down the street. They’ll start to realize it won’t make much difference in their lives. I don’t see it as the kind of issue that will endure in controversy.”