The politics of "Roe" and gay marriage

There are two versions of this argument. The first — Democratic Process Lite — is that the court shouldn’t act now but rather give the country more time to adjust to the notion of marriage equality before stepping in. The second — Democratic Process Above All — would have the judicial branch eternally defer to supposed legislative wisdom.

The first argument makes some sense to me. It tracks the court’s program of deliberate procrastination on the analogous matter of laws barring interracial marriage. In the emotional aftermath of the school desegregation rulings, the court managed to duck the issue of interracial marriage for a dozen years, during which the number of states with anti-miscegenation laws fell from 26 to 17…

But there is a difference between “too far, too fast” and “never ever,” which is why the Democratic Process Above All argument is wrong. The point of constitutional protections is that some rights are too fundamental to leave to a majority’s whims and prejudices…

Harvard Law School’s Michael Klarman, who believes that Roe “catalyzed a powerful right-to-life movement,” nonetheless predicts that a broad ruling on same-sex marriage would be less incendiary, in part “because the effect … on others’ lives is so indirect.” That sounds right: Those who view abortion as murder understandably feel more intensely than those who express moral distaste for same-sex marriage.