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Politicians in such states would surely denounce a marriage equality ruling. Significantly, though, the brief supporting gay marriage filed on behalf of more than 100 leading Republican political figures guarantees that the national Republican Party would not condemn a marriage equality ruling with a united voice.
A final factor relevant to backlash is the ease with which a court decision can be circumvented. Brown was easy to evade because, while barring racial segregation, it left pupil placement decisions in the hands of local education officials, who devised ostensibly race-neutral placement policies that kept Southern schools almost entirely segregated for another decade. Similarly, abortion opponents in state legislatures have whittled away at Roe by devising endless abortion-clinic regulations that impede access.
Circumventing a marriage equality ruling would be nearly impossible. County clerks who refused to grant marriage licenses to eligible couples would clearly be defying the law. Some might resign based on their religious convictions. Those who did not would quickly be fired for insubordination unless state officials chose to countenance their civil disobedience. Can one really imagine a state governor “standing in the courthouse door” to defy such a ruling?
Court decisions can also be nullified by intimidating beneficiaries. The threat and reality of physical violence discouraged African-Americans from bringing a school desegregation suit in Mississippi for an entire decade after Brown. Similarly, violence against abortion clinics and doctors has reduced the number of abortions.
Violence against gays and lesbians is certainly not a thing of the past. Yet can one really imagine the sort of pervasive violence directed against civil-rights activists in the 1960s South being used against same-sex couples seeking marriage licenses in 2013? The country is different, the issue is different, and public officials would not slyly encourage violence in the way that Govs. Wallace and Ross Barnett did after Brown.
Thus, while a broad marriage equality ruling would undoubtedly generate some backlash, its scope would be far less than that ignited by Brown or Roe. A majority of Americans would immediately endorse such a decision, and support would increase every year.
Opposition would be far less intense than it was to school desegregation or abortion, because the effect of same-sex marriage on others’ lives is so indirect. Some politicians would roundly condemn the ruling, though many Republicans and most Democrats would not.
State officials would have no way to circumvent such a decision, nor would many same-sex couples be intimidated out of asserting their right to marry. Outright defiance is conceivable, though it seems unlikely that any state governor would be willing to go to jail for contempt of court.
The likeliest scenario, in the event of a pro-equality ruling, is immediate, strident criticism from some quarters, followed by same-sex couples marrying in states where they previously could not. Very little will change in the lives of opponents, and the issue will quickly fade in significance.
Michael Klarman is a professor at Harvard Law School and the author of “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage.” He wrote this article for the Los Angeles Times.
The Opinion section is produced by the Editorial Department to foster discussion about key issues. The Editorial Board represents the institutional voice of the Star Tribune and operates independently of the newsroom.