Not long ago, the New York Court of Appeals intervened in a dispute over a hotly contested social issue: It struck down legislation that had been passed by the democratically accountable legislators of the New York State Assembly, legislation that was also a crucial part of the governor's first election campaign. Despite this, the court usurped the prerogatives of the more democratic branches and arrogantly ruled the legislation unconstitutional.
I'm referring, of course, to the 2004 decision of the New York courts to rule New York's death penalty statute unconstitutional. The above characterization of the actions of the judiciary is not mine but rather reflects the way that many of the armchair legal scholars that grace the nation's op-ed pages tend to describe judicial decisions on contested social issues. These pundits routinely assure us that such judicial interventions -- ones that undermine policies favored by elected officials -- anger the public and create a backlash far greater than if the legislature had taken the same action. These same pundits were fairly quiet when it came to the New York death penalty case, and that turned out to be a wise choice given that such a backlash didn't happen there: The legislators whose will was supposedly thwarted accepted the court's decision without any significant effort to pass a new statute, while the public appears poised to crush the state's Republicans in 2006's two most important statewide races.
The absence of any backlash in this case notwithstanding, the idea that the public is uniquely outraged by judicial decisions that affect salient cultural issues -- which I call the “countermobilization myth” -- is highly durable. Indeed, pundits across the ideological spectrum have claimed that the court's recent decision to uphold New York's discriminatory marriage law is really a blessing in disguise for gay marriage advocates, because it will spur forward legislative reform that should result in more stable and legitimized outcomes. John Podhoretz called the decision a "lucky loss" for the gay-rights movement, explaining that "the only way to ensure that gay marriage achieves the status its backers desire is for them to make their case and win their argument in the court of public opinion." The New Republic's Peter Beinart concurred that "[g]ay marriage can be truly secured only by changing Americans' minds, and court decisions that lack public support do not accelerate that process; they sabotage it."
With the subject of gay marriage on the ballots in many states this year as in 2004, these strategic questions will again come to the fore. And notwithstanding the counter-intuitive cuteness of pundits' words of encouragement, it is highly unlikely that gay marriage advocates will fare any better on account of the reticence of New York's judiciary. Opposition to significant acts of judicial review regarding divisive social issues is a potentially defensible ideological position. But the tendency of pundits to project this democratic theory onto the general public cannot withstand empirical scrutiny. And in the specific case of gay marriage, there is also little reason to believe that judicial interventions have produced, or will produce in the future, a uniquely strong backlash.
The most common case cited by proponents of the countermobilization myth is the backlash that followed Roe v. Wade. As I argue in more detail in the July/August issue of the Prospect, however, the idea that effective anti-abortion mobilization was instigated by the Supreme Court's intervention is based in a fundamental misunderstanding of the history of abortion politics. At the time of Roe, states were not strongly trending toward liberalization; only one state liberalized its laws in the two years before Roe, while many attempts failed. In fact, the anti-abortion backlash grew out of the initial, pre-Roe wave of legislative reform from 1967 to 1970, and it is implausible in the extreme to claim that such state and federal reforms efforts would have had more success had the Supreme Court not acted to protect reproductive rights.
John Podhoretz ups the ante by also using the (admittedly extensive) resistance to Brown v. Board of Education as evidence that judicial review is a “bad way to make revolutionary alterations in the nation's social fabric.” The illogic of this argument is readily apparent. First of all, less than five years after Brown, Congress passed its first civil-rights legislation since Reconstruction, and within a decade it had passed the Civil Rights Act of 1964. If these are the wages of the backlash that proponents of gay marriage can expect, then I say the sooner the courts get aggressively involved, the better. In addition, the case of civil rights demonstrates that a public backlash (regardless of its source) can have paradoxically salutary effects for the cause being resisted. It is highly unlikely that the Civil Rights Act could have passed as quickly as it did without the South's violent and lawless resistance to Brown, and of course LBJ effectively used the brutality of Selma to make the case for the Voting Rights Act.
Similarly, a few judicial decisions legalizing gay marriage in progressive states would make the silliness of the often hysterical claims made by gay marriage opponents clear; heterosexual couples would quickly notice that their lives remain unchanged by the marriages of their gay neighbors. Opponents would have to face off against specific, normal couples rather than abstract bogeymen -- to the benefit of gay marriage advocates. (This, of course, is why opponents want a federal constitutional amendment pre-empting any state from permitting gay marriage.)
But what about the specific evidence in the case of same-sex marriage? To support his contention that the New York court "actually did the gay marriage movement a favor,” Peter Beinart cites opinion surveys that showed a brief spike in opposition to gay marriage following Goodridge's legalization of the practice in Massachusetts. But this evidence is remarkably weak -- after all, as Beinart himself concedes, this spike has already petered out, with public support for gay marriage back to pre-Goodridge levels. Moreover, in Massachusetts itself -- where presumably the backlash would be particularly acute -- legislators who opposed the court's decision lost ground in subsequent elections, and attempts to get a referendum to overturn the decision on the ballot failed. Moreover, without another legislature having legalized gay marriage at the same time, we can't use a comparison to determine if even the small and temporary backlash that followed Goodridge was caused specifically by judicial policy making, rather than by the banal fact that losing a policy battle in any arena focuses the minds of (and raises the stakes for) the losers.
Indeed, it is useful to look at comparative cases. In Canada, the courts have been very active in protecting gay rights -- first forcing conservative Alberta to add sexual orientation as a protected category in civil-rights laws, and then striking down some provincial marriage laws as unconstitutional because they excluded gays and lesbians. Despite this, Canadian public opinion has continued to become more favorable toward gay marriage, and in June 2005 the Martin government passed legislation making gay marriage legal throughout the country. Despite the defeat of the Martin government, parties who support this legislation won a strong majority of the popular vote and hold a majority of the seats in Parliament following this year's election.
The evidence strongly indicates that the public evaluates judicial policy making the same way it evaluates policymaking by the other branches -- by substantive outcomes. There's no reason to expect that gains achieved through the courts produce more of a backlash than commensurate gains won through the political branches. This means there's no reason to believe that judicial protection of gay rights produces more of a backlash than legislative protections. Moreover, successful litigation may create dynamics that make future legislative action more likely. There are good-faith debates to be had over the merits and legitimacy of judicial review -- but it's time we buried the countermobilization myth once and for all.
Scott Lemieux is an assistant professor of political science at Hunter College, CUNY, and writes for the blog Lawyers, Guns, and Money.