Gay Marriage Backlash

Megan McArdle reflects on the success of Proposition 8 in California and offers a familiar backlash narrative:

I do think, though, that the success of anti-gay-marriage initiatives reinforces something I strongly believe: the issue was pressed too quickly, and in the wrong venue. Using the courts to establish a right to gay marriage made opponents feel threatened, and railroaded. If socially conservative voters hadn’t felt they needed to protect themselves from activist judges, we wouldn’t be seeing these provisions written into state constitutions. Few of them would probably have bothered to vote out legislators who voted for gay marriage five years from now. But with it on the ballot, in front of them, and worries that judges would make the decision unless they did, they shot it down even in California.

In general, courts are the wrong place to press these sorts of claims. The courts were appropriate for civil rights because blacks were literally denied the right to participate in the legislative democratic process. And on a practical level, they worked because a majority of people in the country were more than happy to force civil rights on an unhappy white southern minority. Unfortunately, too many groups have decided that the success of civil rights can be widely applied to circumvent the electorate on issues where there is no public consensus. Now widespread gay marriage seems quite a bit less likely for the near term than it would have been had we attacked the issue legislatively.

The narrative is familiar because it’s often offered as an account of the politics of abortion. But efforts to study the issue empirically, as opposed to just opine from the armchair, never actually adduce evidence of this kind of effect.

That aside, granting the backlash hypothetically, I never quite understand what the upshot of this sort of analysis is. Say you’re living your life with your partner and you want to get married. But then the local legal authorities tell you that you can’t get married. That seems like unfair discrimination to you, so you inquire with an attorney. The attorney says, yes, your state has never allowed a man to be legally wed to another man, but he agrees with you that it’s unfair. And not just unfair, illegal, a violation of your state constitution’s guarantees of equal rights. So you sue! Then the case comes before a judge and the judge thinks, yeah, the local authorities’ action is a violation of the state constitution’s guarantee of equal rights. Is the judge supposed to rule against you even though he thinks your case has merits, offering as his reasoning “it would be counterproductive to the long-term political strategy of the gay rights movement for me to offer the ruling I believe to be correct”? That doesn’t sound right.

And is Gay Rights Central Command suppose to somehow stop you from suing? How would they do that?

The fact is that as best I can tell most gay rights organizations agreed with Megan about this. As of a few years ago, their big idea was to push for what they saw as practical legislative goals — hate crimes laws and an Employment Non-Discrimination Act — to help slowly but surely continue to build legislative support for full equality before the law. But they had no ability to prevent various individuals in Hawaii, Massachusetts, California, and elsewhere from pursuing their legal rights as they saw fit.