Too Much, Too Soon? 'Obergefell' as Applied Equality Practice

Abstract

Abrupt cultural change inevitably arouses anxieties, and often those fears provoke a retrograde reaction seeking to preserve the familiar status quo. When the world by which we define ourselves undergoes unexpected transitions, especially in directions that contradict the comfortable taken-for-granted assumptions that had been earlier enjoyed, we feel threatened. One needs only recall how the new standards of racial equality announced in Brown I and Brown II elicited virulent protests as some districts chose to shutter all public schools rather than have them become racially integrated.

In the shadow of such traumas, it may seem an obvious lesson that progress should be slow and incremental, going only so far and as fast as the changes can be absorbed into the social habits. William Eskridge has offered a full-throated defense of modulating the rate of change in order to avoid these unintended consequences of modernization. Legal rights can be formally recognized, he says, but their enforcement should not outpace the acceptance of the new order.

The prudence that Eskridge counsels appeals at an intuitive level, but is too abstract to provide useful guidance on how the real world should behave. This paper attempts to demonstrate a means to distinguish situations when caution is prudent from those when it is not, by examining the context in which Eskridge himself frames his defense of incrementalism, that of same-sex marriage.

This paper attempts to demonstrate a means to distinguish situations when caution is prudent from those when it is not, by examining the context in which Eskridge himself frames his defense of incrementalism, that of same-sex marriage.