Thus, the road to same-sex marriage looks like it has been a long slow
slog, followed by a sprint. The issue was placed on the national agenda
in the early 1990s, when a state court ruling in Hawaii led a panicked
Congress to enact DOMA, but for roughly two decades, the fear of
same-sex marriage was a bogeyman invoked by right-leaning politicians to
turn out socially conservative voters. Then, in just a couple of years,
opposition to same-sex marriage came to be regarded as nearly as
retrograde as racism. Where the Justices in 2003 and even 2013 might
have worried about backlash if they recognized a constitutional right to
same-sex marriage, today they have more to fear if they fail to recognize such a right.
The recent change in attitudes towards same-sex marriage is
remarkable for its speed, but that may simply reflect the well-known
“tipping point” phenomenon popularized and arguably oversold by Malcolm
Gladwell. Even if some of Gladwell’s examples are controversial,
however, the underlying phenomenon undoubtedly exists. For example, ice
remains ice as one heats it from sub-zero temperatures to above 32°
Fahrenheit, and then it rapidly melts.
Tipping points are
especially likely in the political realm because of majoritarianism. A
position that lacks support will meet with little success, even as it
gains considerable support, but then, when popular opinion crosses the
fifty percent threshold, rapid legal change can ensue.
What Same-Sex Marriage Teaches About Social Change and the Supreme Court | Michael C. Dorf | Verdict | Legal Analysis and Commentary from Justia
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