I'll say: maybe.

Let's look at the Court's two great and awful achievements of the 20th century, Brown v. Board and Roe v. Wade . In Brown, the Court decided that seperate but equal was not equal, and thus was unconstitutional. So far, so good. Fifty years later, everyone but the lunatic fringe agrees and this decision has become the true deliberate sense of the community. At the time, though, it was not the will of the people to end segregation. The decision formed the will.

This is problematic, because who is the Court to say that seperate is inherently unequal? The Civil Rights amendments, Amendments XIII through XV, explicitly give Congress, not the Courts, the right to enforce the rights secured thereby through legislation. So, if Congress believes that seperate can be equal, what power does the Court have to say differently?

Nor, even if we believe that the end justified the means, is the entirely academic. The result in Brown is just, but the reasoning is problematic. At the end of the day, the Court found that seperate was inherently unequal because, among other things, blacks would so benefit from the mere proximity of whites. This theory has now been extended to boys and girls so that, today, when there is a respectable body of thought that black males would profit from being taught with other black males, we cannot even run the experiment to find out.

And, of course, Brown leads to Roe. We may, as conservatives, approve of the result in Brown and dissaprove of the result in Roe, but the two decisions are related closely enough that approval of the former sits a little uneasily with disapproval of the latter. (Not that they are exactly the same. The Constitution does, at least, explicitly mention race.)

The two decisions are most similar in this: Roe, like Brown, was a self-conscious effort by the Court to force the will of the people. Unlike Brown, Roe failed miserably, so that 30 years later abortion remains a potent political issue -- much more potent, as it happens, then it was in 1973 when Roe was decided.

Sometimes the Court grabs the brass ring, and sometimes it grabs the tar baby. I suspect that I know which one homosexual marriage is, but only maybe.

The tendency of the modern court is to force the issue with little constitutional justification. Leaving good enough alone is rarely the option chosen. The judges seem to believe that the nation needs a push as social mores are changing on their own since, if they were not changing, the judges themselves would not think themselves as posessing such advanced ideals. The written constitution is nothing if not a protection against such hubris and the coercion it sets in motion. State laws regarding abortion were varied and changing at the time of Roe as were views on race at the time of Brown. The coercive power of the state, once set in motion, is rarely reversed as the will of the people is slowly devalued. Affirmative action and the resentment it creates is another example of the danger of solutions to self-correcting problems when imposed from above. The self-destructive emotions of envy and resentment are checked by wise parents although encouraged by statists as a tool of power. Weird.

David-

I'm not willing to concede that "Brown", on balance, was a good thing for the country in general or for "African-Americans" in particular. The evidence is mixed, at best.

Brown is no more grounded in the Constitution than Roe. In 1896, Jim Crow was not "inherently unequal" according to the Supremes, yet in 1954 it was? Did the Constitution change on this issue in the 50 year period? No. Only the judges.

The national consensus would have moved anyway. It was the right thing to do and MLK and others would still have marched/boycotted. It was the Civil Rights Acts and especially the Voting Rights Act which killed Jim Crow, not the Courts.

Actually, the best analog to Roe is Dred Scott, not Brown.

I read someplace, many years ago, that when there is a decision on how to interpret the Consitution, or how to amend it, that the American people instinctively fall back on the Declaration of Independence as a more fundamental document: The Constitution is an implementation of a government in order to secure the rights of a people having a mind-set that tyrants do not deserve their power over the people, but that the people rule themselves, and retain the right to rebel against tyrants.

Brown was accepted because the people, if not the Justices, knew that segregation was, at the root, contrary to the Declaration. Dred Scott was not, and there was active opposition to all the entailments of it, up to the Civil War, precisely because it flew against the concept of "all men are created equal". AFAIAK, Roe is similar in that way as well, in that age, not race, becomes the discriminant property.

Thus, I say "Yes", with the author: The people are rebelling because they sense a tyranny, but only vaguely. The left strives to maintain the ambiguity, and thus conceal the truth. The Right should drag it out into the open, give it a name, state its right nature, and call upon the people to see the truth.

The Jacksonians will take it from there.

Considering the higher rate of promiscuity and casual sex partners among the homosexual community, I think part of the objection is not only to widening of the definition of marriage, but the fear that the idea of fidelity in marriage would take an even bigger hit than it has already.

Mutliple-marriage celebrities openly cheating on their spouses have been commonplace for over half a century, and the American divorce rate has gone up during the same time period, but society still isn't being asked to look at either as a good thing. However, the drive to categorize the gay lifestyle as equivalent to the hetrosexual lifestyle would no doubt in the future lead to activists in that group to demand greater tolerance of infedlity within marriage, if other states or the Supreme Court in the future decides to follow Massachusetts' lead.

Ghost: If we decided to salve our consciences at the cost of a couple of generations of black kids, would that really surprise you?

Everyone else: The Civil War amendments really to mean something. At the very least, they mean that the federal government is to stamp out the vestiges of slavery and make sure that the states don't treat citizens of the United States differently on the basis of race. And if the Constitution doesn't say that, then damn the Constitution.

John: We have more or less come to the libertarian ideal of marriage: the only judge of whether a spouse has transgressed is the other spouse. "If Hillary doesn't care, then who are we to judge?" Society has not actionable interest in stable, monogamous two-party marriages, and we don't shun adulterers. It's nuts, but there you are.

David -

Not just a couple of generations of Black kids, but innumerable neighborhoods and several entire cities. Helluva price to pay to assuage White consciences. The basic problem ... that poor kids in poorly funded schools do poorly ... was a problem of poverty, not race, and got lost in the maelstrom of social engineering. Ending compulsory segregation was a noble and achievable idea. Compulsory integration was a disaster.

It was the Civil Rights Acts and especially the Voting Rights Act which killed Jim Crow, not the Courts.

Exactly. Brown just inflamed the issue. The contrast with Roe, which has poisoned and inflamed our politics for 30+ years, could not be more stark.

Ptah has it perfectly: the people "sense a tyranny, but only vaguely." That is what makes these things larger than the culture war.