Posted by Brad @ 9:14 pm on August 5th 2010

The Backlash Potential

Not to pick on Rojas, but our most frequent argument on the occasion of judicial victories for marriage equality revolves around the idea that these things shouldn’t happen through the judiciary, but rather need to happen when a critical mass of the populace demands they happen. We’ve gone ’round and ’round on the reasons I find this unconvincing and slightly irrelevant, which I won’t rehash, but Sully has a good post tackling exactly this question. In response to a very similar argument from Allahpundit, Andrew’s point, which is, in part, mine as well, is:

I understand the point. At the same time, I am unaware of how to control this kind of thing. Olson and Boies were and are not part of the gay rights establishment; and anyone can bring a lawsuit. What we’re seeing is a series of waves toward equality – in public opinion, legislatures, and courts. Each one has back-eddies. But I’ve been part of this for too long to believe this social change can be micro-managed, timed perfectly, or controlled by anyone.

Three other quickie points:

1. Once a single person, anywhere, brings the lawsuit, you can be damn sure that the anti-gay marriage will bring the thunder to the defense, so the real question is whether the marriage equality advocates should “let it go” and suffer a potentially game-changing precedent for the sake of not courting a backlash. And I just don’t see how that can be asked of them, or why it would be in their ultimate interest.

2. I also believe that these decisions are both educational opportunities for the public at large, and also opportunities to show people’s worst fears not being realized. In Mass, the ruling spawned a massive national backlash (which has led us to where we are now, both good and bad), but in the state itself, which began the process very divided on the question, we now find…broad ambivalence. Normalization. Same, actually, in California…between Newsom granting licenses to Prop 8 to today, public opinion has moved mightily, in large part, I believe, because gays did get married, and…well, nothing happened. Nobody married their dogs, swarms of gayness didn’t break out everywhere, children didn’t suddenly learn kinky sex, etc. etc. The more the issue is forced, the more actual gay couples get actual married, the more people forget what the big deal was supposed to be. And the more gay marriage opponents are put on the stand, and the more their arguments are put under actual scrutiny, the more the truth will be revealed.

I expect, if a Supreme Court case ever declared that states had to marry same sex couples, a massive backlash…for awhile. But after a couple of years, I expect the steam blows out, Monday becomes Tuesday, and people, at least en masse, find other things to fight about.

3. Finally, I guess what it comes down to for me, is putting myself in a judge’s shoes. At the end of the day, these judges—from Marshall in Massachusetts to Walker today—have a very simple question before them. Absence political or tactical considerations, in America as we presently understand it, is it constitutional to deny same sex couples the right to marry? Is there a rational basis—not an arbitrary or prejudicial one—that passes musters? To put that another way, if you were that judge, and you were both convinced that no, there is no basis to deny same sex couples that right, and yes, writing that decision and putting that to precedent would cause a backlash—would you not still write the opinion and state the truth, as you saw it? Or would you knuckle, and make a finding you believed to be wrong, but do so for practical, political, considerations…because it would be better for the ultimate agenda (it would better advance an agenda, in other words)? Would you decide on truth absent politics, or politics absent truth? At the very least, which way would you lean, in that binary?

Now, after you answer that…what would you call an activist judge again?


  1. All good points, especially #2, which is what seems to have actually happened in those states where gay marriage has already been legal for some time (including Iowa, where one might have expected the “backlash” scenario to be more likely than in New England).

    There’s also the precedent of analogous conflicts in the past. At the time of Loving v. Virginia, 70% of the American people supported retaining the laws against interracial marriage which it struck down; at the time the Jim Crow laws were rolled back, it’s quite possible that majorities in some Southern states might have voted to keep them, had the issue been decided by popular will. If you believe there’s a fundamental civil right at stake, it’s untenable to argue that the law should have waited (possibly decades) for public opinion to come around.

    Comment by Infidel753 — 8/6/2010 @ 6:44 am

  2. For me it’s pretty simple: Marriage is regarded as a fundamental right, the Equal Protection Clause does not allow for discrimination, and other people cannot vote to deny individuals a Constitutionally protected right – this is the heart of Walker’s opinion. It’s the court’s job to make sure that laws are Constitutional. In Walker’s opinion, this one isn’t. What’s the controversy?

    Comment by Liz — 8/6/2010 @ 10:58 am

  3. Cue Wendy Kaminer, who deals with the Loving argument among others.

    The argument is not primarily about a backlash, or a criticism of the judicial holdings themselves. The argument is that the judicial strategy jeopardizes what was otherwise a glide path to universal recognition of (and general acceptance of) gay marriage. Judicial intervention will no more produce an enduring respect for gay marriage as an institution than it produced respect for a woman’s right to abort her fetus. I suppose some would be willing to settle for pro forma recognition of gay marriage as a replacement for actual public respect and recognition, but I rather think that gay marriage advocates can and should aim higher than that.

    Brad speaks to the importance of a judiciary that is independent from politics. But when key political questions become settled by judicial fiat, it becomes more important, not less, for politicians to fill the courts with political ideologues. That doesn’t mean that the courts shouldn’t make decisions about pressing social matters, but it does mean that an intelligent strategy for legal redress will be one in which the courts are sought to ratify broadly held principles, not to engineer them.

    Comment by Rojas — 8/6/2010 @ 12:44 pm

  4. Is gay marriage a key political question, though, or a key legal one? I think, if anything, the politics surrounding it are surrounding a question of rights and constitutionality, not a question of “acceptance”. You’re right, if the agenda is normalizing homosexual relationships in the eyes of heterosexuals, there are better ways to do it (although this point is certainly arguable). The question is whether the quest for marriage equality is, at the end of the day, a quest for heterosexual acceptance. I don’t think it is.

    Comment by Brad — 8/7/2010 @ 12:09 pm

  5. That would be a reasonable argument if the same legal process hadn’t concluded that civil unions, with all the rights guarantees of marriage, were an inadequate alternative.

    The difference between marriage and civil unions is ENTIRELY about acceptance in the eyes of the state, so far as I can see. The advocates of gay marriage think that the state’s acceptance–and not just rights recogniton, but use of the term “marriage”–will lead to broad public acceptance. That translation HAS happened before with regard to some moral norms, but the process is not magical. It is the product of dialogue and appeal to democratic institutions.

    If the mechanism by which the state recognizes gay marriage is democratic, then indeed, norms regarding homosexual relationships will change. Heck, you might one day even persuade Barack Obama. If the mechanism is legal…well, I’m not nearly as sure. What you wind up with is a lot of moral leaders hiding behind the argument that it’s “settled law” rather than actually seeking to legitimize the practice. Take a long look at abortion and school desegregation.

    Comment by Rojas — 8/7/2010 @ 2:39 pm

  6. In my occasional commenting here, I don’t think I’ve lined up with Brad in a Brad vs. Rojas debate. Well, there is a first time for everything.

    While I understand and am sympathetic to the preference for a decision protecting individual rights being asserted by a popular majority and/or legislature as opposed to judicial means, I don’t think there is any basis for saying it is a decision that should not have been made by a judge (activist or not). Let me hasten to state that I am not making a legal argument, as I am not qualified to do so, but rather a constitutional/philosophical argument.

    Our Constitution implicitly and explicitly establishes something of a hierarchy of rights and powers. Federal powers are specifically enumerated, with the powers not delegated to the United States government by the Constitution reserved to the States. This clearly indicates a general preference for states rights and powers. The preference or superiority of majority rule can also be gleaned in the order that the branches of government are enumerated in the articles of the constitution. First the democratic people’s House, then the republican Senate, then the executive (selected by a non-majoritarian electoral college), then the unelected judiciary. All would argue for the preference and superiority of democratic majority decisions to judicial fiat, and the states exercise of power to the federal government.

    But – then there is the Bill of Rights, without which the Constitution would never have been ratified. The enumeration of rights is informed by a self-evident truth that all individuals are imbued with inalienable rights to life liberty and pursuit of happiness. These rights are at the pinnacle of and/or transcend the entire hierarchy of preference of power. The fundamental assertion of the Bill of Rights is that no powers may abridge these rights – including a democratic majority at either a state or federal level. James Madison speaks directly to protection or rights from the majority, both in Federalist #10

    When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

    By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.”

    … and in his speech introducing the Bill of Rights for consideration as part of the new Constitution:

    “But whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the Executive power, sometimes against the Legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

    In our Government it is, perhaps, less necessary to guard against the abuse in the Executive Department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be leveled against the Legislative, for it is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the Legislative body. The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the Executive or Legislative departments of Government, but in the body of the people, operating by the majority against the minority.

    So what happens when the majority acts against a minority, as in Proposition 8? Here we see that the executive branch has made a craven political decision to not act in support of the minority, and the legislators at both the federal and state level are unwilling to act in contradiction to the majority view. In such a case, it is only the judiciary that can preserve rights against the will of the majority. Not only is that acceptable, it is necessary, even if means substituting judicial fiat for democratic majority or legislative action. Self evident inalienable individual rights should trump the majority every time.

    I suppose that one can argue that same sex marriage does not fall into the category of a self evident inalienable right to pursue happiness. This is where we probably cross the line from a philosophical argument to a legal argument. But on the broader question that I think is being debated here – whether a judge should substitute their judgment for the judgment of a majority? Yes they should. I’m pleased with the Judge Walker’s decision, as I saw Prop 8 as a clear attempt by the majority to impinge on the rights of a minority. He did his job.

    [Sorry about the length of this comment. Yes – I am roughing out a post idea using your comment thread.]

    Comment by mw — 8/7/2010 @ 9:31 pm

  7. So what you’re saying, basically, is…

    Comment by Rojas — 8/8/2010 @ 1:24 am

  8. heh. Yeah, could’ve saved a thousand words.

    Comment by mw — 8/8/2010 @ 9:28 am

  9. I guess I fundametally disagree with the view that gay marriage was on a glide path to national accpetance had these court decision not created backlash. I think the backlash is harsh but temporary, and that widespread acceptance of gay rights in general have been incrementally improved as a result of each major legal challenge. Each exchange offers gay advocates the media opportunity to speak their views before a wide audience, and for people to hear gays speaking of commitment, love, and equality under the law. I think Rojas’ explanation that gay marriage cases resonate in the national conscience more like Roe V Wade than they do Loving v Virginia is an interesting view worth discussing, I just don’t happen to think its accurate.

    Comment by Jack — 8/8/2010 @ 8:15 pm

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