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Here’s a question that same-sex marriage advocates ought to be pondering: Are we at 1954 or 1896? Those are the dates of the U.S. Supreme Court decisions in Brown v. Board of Education and Plessy v. Ferguson. The Brown decision put the judiciary at the vanguard of profound changes in American society. Plessy was a human-rights setback that lasted half a century. Which sort of decision is likely to result from the recent spate of same-sex marriages in San Francisco? That will depend in large part on the judicial philosophy of the appellate decision maker — initially the First District Court of Appeal, and perhaps thereafter the California Supreme Court — on whether the courts should actively promote social change or passively reflect it. Last year’s decision in Goodridge v. Department of Public Health, where a 4-3 majority of the Supreme Judicial Court of Massachusetts held that the denial of marriage licenses to same-sex couples violates the equal protection and due process guarantees of that state’s Constitution, is illustrative of two competing judicial philosophies. Both sides in Goodridge seemed to agree there is not yet broad societal acceptance of same-sex marriage. The majority believed, however, that the courts should not “permit an unconstitutional situation to fester because the remedy might not reflect a broad social consensus.” The dissenters responded that “the law always lags behind the most advanced thinking in every area, and must await some common ground, some consensus.” In other words, the Goodridge dissenters think that, with same-sex marriage, society is not there yet, so the courts should not go there. The majority thinks the law must take society there if the Constitution requires it. That’s the difference between Plessy v. Ferguson and Brown v. Board of Education. The Plessy decision passively reflected American society of 1896. The Brown decision actively promoted societal change. In hindsight, we know which was the better course. But it took 58 years for the U.S. Supreme Court to get there. With same-sex marriage, I think we’re closer to 1954 than 1896, but we’re certainly not at broad social consensus — neither nationwide nor in California. A recent nationwide poll has people opposing same-sex marriage by a margin of 55 percent to 37 percent. A California poll puts statewide opposition at 50 percent to 44 percent. That doesn’t necessarily mean same-sex marriage advocates should await consensus before pressing the issue in the courts. If Thurgood Marshall and his colleagues at the NAACP had thought that way in 1954, we might still be awaiting Brown v. Board of Education. But it is important to know that Brown was not the beginning of school desegregation litigation. Rather, it was part of a carefully crafted litigation strategy that started with graduate schools and culminated with elementary and secondary schools — big strides, but not a great leap. Few judges are fond of taking great leaps in promoting societal change. Great leaps happen, but very rarely. Most judges take careful, measured steps. For advocates of social change, a big stride, if not a great leap, is a big victory. Has the groundwork yet been laid for a great leap, or even a big stride, toward same-sex marriage, as Marshall and his colleagues laid the groundwork for Brown v. Board of Education? Or are we on the verge of something more like Plessy v. Ferguson? Tough questions that should be debated. Jon B. Eisenberg is an appellate attorney in Oakland.

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