The Supreme Court will hear oral arguments next week on the question of whether the Constitution allows states to ban same-sex marriages. Whatever it decides, there seems little doubt that the U.S. is moving rapidly toward allowing such marriages, and with remarkably little public controversy. Contrast this with the issue of abortion, which has split the nation for 40 years (and counting).
Why the difference? There are three standard answers.
• The Supreme Court ruined everything.
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A forgotten bit of history is that in the seven years before the court decided Roe v. Wade (1973), a significant number of states liberalized their abortion laws. Four, including New York, repealed them altogether. Thirteen others changed them to allow abortion when the pregnant woman’s health was endangered, and also in cases of rape, incest and fetal deformity. So, in the years before Roe, the number of legal abortions surged. The pro-choice trend was unmistakable, and was facing only limited controversy.
Some people believe that by suddenly declaring abortion to be a constitutional right, the court galvanized the pro-life movement and polarized the nation. According to this view, the court’s premature involvement truncated a healthy democratic debate, and it was the arrogance of an activist court that produced the divisions of the past 40 years, and the energy and success of the pro-life movement.
If that’s right, then the current court should perhaps be warned: A ruling this year that states must recognize same-sex marriage could provoke a backlash that wouldn’t occur if democratic processes were allowed to play out.
• The moral issues are fundamentally different.
To many people, abortion is a grave moral wrong, because it involves the intentional killing of a living creature legitimately described as a person (perhaps from the point of conception, perhaps at some later stage). The most obvious justification for restricting people’s freedom is to prevent harm to others. When states protect life, they prevent that harm.
It’s a lot harder to say the same about bans on same-sex marriages. True, some of those who oppose such marriages contend that they cause harm – for example, to children or to opposite-sex couples. But they struggle mightily to make those arguments convincing.
According to this view, the controversy over same-sex marriage is quieter because the moral issues are easier.
• It’s the social movements, stupid.
Everyone knows that, in recent years, an energetic social movement has been working to legitimize same-sex marriage. While some of this work has involved constitutional arguments, most of it has been political – the repetition of a simple question, illustrated with human faces: Why should some people – your brothers, sisters, children and friends – be denied access to the defining institution of marriage?
Although many people strongly oppose same-sex marriage, and are willing to give time and money to ban it, they haven’t really created a social movement.
Things are different in the context of abortion: Both pro-life and pro-choice movements have been energized and amply funded for decades – and their opposition both reflects and helps to perpetuate national polarization.
Which of the three explanations is right? The third one is the strongest. But the three actually work a lot better together than separately. Roe v. Wade did energize the pro-life movement, and no social movement can succeed unless people believe that it has a strong moral foundation.
One implication is clear: Same-sex marriages are unlikely to produce anything like the social divisions associated with abortion. Opponents of such marriages have a hard time identifying concrete social harms. And in the U.S., it’s pretty hard to mobilize one’s fellow citizens without them.
Cass R. Sunstein, a Bloomberg View columnist, is director of the Harvard Law School’s program on behavioral economics and public policy.