I think it was a horrible decision. I think it ruined a lot of our politics in a lot of areas subsequently, and it’s been a bane of the culture wars. And insofar as it tempted evangelicals to come flooding into political life, I think it’s the worst decision ever made by the Supreme Court.
The argument behind this, as best I can reconstruct it, is that if states had voted for abortion one-by-one, evangelicals would have stayed in their churches and calmly accepted what they consider to be slaughter of innocents. I doubt it. Moreover, if this argument is true, does it apply to Brown v Board of Education, Loving v Virginia and Griswold v. Connecticut? If we had waited until school integration, interracial marriage and contraception were accepted by voters, there would still be states where the pill is illegal, the first interracial couple might have gotten married in Mississippi or Alabama a few years ago, and who knows that schools would look like in some other Southern (and Northern) cities.
Proponents of gay marriage seem to be worried that their cause will be hurt by the Roe effect, specifically, if Prop 8 is struck down and the court rules all gay marriage bans unconstitutional, the resentment over the Court’s imposition will mean that gay marriage will face 40 years of roiling controversy rather than quiet acquiesence. Maybe so, but I don’t see Utah, Alabama or Arkansas calmly accepting same-sex marriage within the next few decades. I’d rather see the Supreme Court protect the rights of a minority in the Prop 8 decision, as it did in Roe, Brown, Loving and Griswold. Forty years of Roe has meant forty years less misery and forty years of fewer deaths. A wide-ranging Prop 8 decision would be a boon for thousands of couples who will be in their graves long before their backwater states recognize what should be a basic human right. In return for that, I think we’ll be able to tolerate the noise made by evangelicals and the other retrograde political actors.