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No Backlash, Mr. Chief Justice

Ruth Marcus on

WASHINGTON -- Writing a judicial opinion can be like fencing. One of the most effective ways to jab at an opponent is to use his -- or her -- words to make your own case.

Thus, Chief Justice John Roberts, warning in the same-sex marriage case about the harmful results of the court's intervention:

"There will be consequences to shutting down the political process on an issue of such profound public significance," Roberts wrote in his dissent. "Closing debate tends to close minds."

In support, Roberts archly quoted the observations of "one thoughtful commentator" -- Justice Ruth Bader Ginsburg on abortion rights.

"The political process was moving ..., not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting," then-Judge Ginsburg said in a 1985 lecture critical of the high court's approach in Roe v. Wade. "Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict."

Touche!

 

Except, same-sex marriage is not like abortion. The scattered brushfires of official resistance to the court's ruling last week are already beginning to burn themselves out. Even as abortion continues to divide the country and the justices (see, for example, Monday's 5-4 vote blocking enforcement of a Texas abortion law), same-sex marriage, I believe, will prove to be far less inflaming.

Indeed, the Ginsburgian narrative of Roe as a politically polarizing force does not present the full picture. Unlike the case with same-sex marriage, legislative progress to relax abortion restrictions had begun to slow in the years before Roe.

But even assuming Roe fueled a poisonous national argument over abortion, there are reasons to doubt that the court's edict in Obergefell v. Hodges, decreeing a constitutional right to same-sex marriage and removing the issue from the democratic arena, will produce an analogous backlash.

One reason concerns the fundamental difference between abortion and same-sex marriage, as much as opposition to both is fiercely felt. For those who believe that life begins at conception and that abortion is therefore tantamount to murder, abortion poses a clear harm and an identifiable victim.

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