Better to Be Right, or Have Rights?

Burt Neuborne has a piece in The Nation (Yarmulke Tip: Eugene), in which he essentially argues that liberals have become too reliant on courts and have failed to follow through with grass-roots mobilization. I agree. But I'd go even further: the better path is to start with grass roots mobilization, and move to courts only after building a strong base.

Example: Same-sex marriage. As a political matter, I strongly favor same-sex marriage for the reasons articulated by Andrew Sullivan and Jonathan Rauch. I also believe that the constitutional Equal Protection argument (based on Loving v. Virginia) is very compelling. However, I fear that pressing these cases in courts--even in relatively "friendly" states (VT, MA, CT, CA, etc)--may do a great deal of damage in the long run, both to the fight for same-sex marriage itself and for liberalism generally.

Witness: after the Mass. Supreme Court ruled in favor of same-sex marriage, numerous states passed laws and referenda restricting marriage and civil union laws; Republicans even pushed for a constitutional amendment, which may only have failed because McCain and others determined that an amendment was premature--not wrong, just premature. And it probably hurts liberals at the polls.

So what to do? I think the key for same-sex marriage advocates is to push for marriage rights legislatively, and spend energies continuing to build the grass-roots movement. Indeed, much as I hate the idea, it may be worth dropping the same-sex marriage fight altogether for the moment, and focusing instead on strong civil unions. I would only accept civil unions that offer all of the benefits of marriage (save the name).

In some ways, this idea is odious for those of us who support same-sex marriage as a matter of constitutional equality. But I ask this: In this case, is it better to be right, or to have rights?