As gay rights advocates celebrate the recent legislative victory in New York allowing gay marriage within the state, I question whether advocates of increased rights for gay, lesbian, bi-sexual, and transgender people (LGBT) will turn away from the judicial system where they have already fought and lost many battles and opt for the far more time consuming and expensive though potentially more profitable path of legislation and advocacy. Gerald Rosenberg has produced a provocative book on the subject entitled The Hollow Hope : Can Courts Bring About Social Change arguing against the long held belief that courts can bring about social change. The book focuses on three main movements: civil rights, abortion, and gay rights, among other rights. The argument argues that courts can play a role in social change only when their opinions match up with a prevailing social mood within the country and when legislators themselves are ready to act or are looking for someone to blame if the prescribed social change is unpopular with a constituency.
It is a reality that LGBT advocates have achieved more victory through legislation than any court victory. However, without the court cases would LGBT issues that lead to things like civil unions legislation and increased benefits and recognition for these people including hate crime legislation in many states. It is my view that Rosenberg undercuts and in fact minimizes it by declaring it that the courts have little power in determining social change. Without seminal rulings like Brown v. Board of Education, and Roe v. Wade, would there have been the legislative movement to desegregate schools or even conduct the abortion debate that continues to burn throughout the halls of debate in America? Regardless of one’s position on these thorny issues, more debate is always a good thing. The reality is that Rosenberg is correct, real change occurs through mindsets and attitudes of people which alter legislation, not the court system.