First, let me get this out of the way:

Yes, Republicans are waking up this morning to the horrible realization that women and minorities get to vote in this country.

And gays. Oh, yes, gays and lesbians had a really good day yesterday. Republicans are licking their wounds by telling us that Obama had a very narrow victory and that this is still a “center-right” country. And maybe that’s true on economic issues. But on social issues? Homophobia was rejected last night. In its place, weed won. Think about that. After a 0 for 32 success rate with same-sex ballot initiatives, two states legalized gay marriage by popular vote, Washington will almost certainly affirm the legislature’s legalization of same-sex marriage, and one state declined to outlaw it. And we have our first openly lesbian Senator.

But, like Théoden King, it was not Obama of Chicago that lead gays and lesbians to victory out of the Deeping Wall of inequality. Obama was a late and unsteady comer to the fight for equal rights.

In fact, don’t think any national politician can claim the mantle of “leader” on this issue. Instead, I think that the law, through its protectors on our nation’s courts, have brought the people around on this issue….

Conservatives are fond of a minimalist, restrained approach from the courts. On the gay marriage issue, many thought that the courts should stay out of it until the people (through their legislative representatives) acted. (I am of course being kind to conservatives by ignoring the hard right who wanted the courts to strike down gay rights because… something, something, God’s will.)

But my view (I won’t speak for all progressives) is that the courts are the last, best defenders of minority rights against the tyranny of the majority. Sometimes the people… are wrong. Sometimes their duly elected representatives… are idiots. We can tell the people are wrong and their representatives are idiots when their will goes against the Constitution of our country.

Granted, how we interpret that constitution is, of course, the ball game, but that the courts should be bound to it and not the popular rabble should be undisputed. I think the courts should strike out, actively, when the rights of Americans are being trampled, whether the country is ready for it or not.

And the people will eventually come around. When the courts look at something and say, “No, no, no, this is not an electoral issue where reasonable people disagree, this is an issue of fundamental rights under the Constitution,” that means something. That changes the debate. That’s what happened with the civil rights movement in the 60s, and that is what’s happening with gay rights today.

When you frame the question as, “Do you believe in God, or are you with the gays?,” then marriage equality loses (I mean, not with me, but with a lot of people). When you frame the question as, “Between these two competing policy options, would you like to watch men kissing men, or football?,” gay marriage loses again. But if instead you can frame the question as, “Do people deserve equal rights?,” we see LGBT issues gain traction. The courts, and in some sense only the courts, can flip the question like that. The courts can move an issue beyond partisan bickering and ask Americans to look at it as a question of rights and freedoms.

Then, once we’re voting on rights, America eventually expands them instead of restricting them. And then the courts can follow along, calling balls and strikes or whatever. Once the courts say, “We’re playing baseball,” then they can fade into the background and go back to being dispassionate arbiters.

I’m not sure whether the Supreme Court will take up the issue of gay marriage, and I’m not sure how they’ll decide things like Prop 8 in the near future. But I am sure that in the long term, gays will have the right to marry in America. And when it is so, somebody will say, “It happened through the popular vote, as it should be, not through legislation from the bench.” But don’t you believe it.

The courts played a crucial role in getting America to think about gay marriage as a right instead of a policy. And that was when this battle was won.


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