Michael Gerson: Gays can keep their rights if they don’t sue for them

In today’s Washington Post, Michael Gerson compares and contrasts the debates over gay rights with the debate over abortion rights — and concludes that gay rights, once gained, will be longer-lasting and more “settled” because they (mostly) haven’t been imposed by an out-of-control judiciary on an unwilling or divided public. Instead, the cause has advanced naturally and gradually through culture. And he warns:

It remains possible that the gay rights movement could provoke a backlash. If the Supreme Court were to strike down restrictions on gay marriage nationally, one could expect a Roe-like reaction in parts of the country.

Gerson might be right in a tactical sense. But his argument ignores a couple of things:

• The advancement of civil rights tends not to take an either-or approach to the question of judicial advances versus cultural advances. The ending of Jim Crow across the South, for example, clearly relied on court cases like Brown v. Board of Education, but the efforts of Martin Luther King Jr. and his cohorts simply made racism less acceptable as a matter of custom. Racism isn’t gone, of course, but the days of being overtly racist and a participant in polite society are largely over. Both aspects — legal and cultural — were important to including African Americans in the life of the country.

• The argument also ignores the question of whether certain civil rights actually exist under the law. Pro-lifers and pro-choicers differ on this, of course, but if a right to abortion actually exists under the Constitution, then it doesn’t really matter how “settled” the debate is. The whole point of being under the rule of law is to recognize that minority rights often conflict with the desires of the democratic majority.

It’s nice if everybody likes it when you exercise your rights. But it’s not strictly necessary.