THE GOODRIDGE BACKLASH? In response to my point that Mickey Kaus's nominal support for gay marriage was empty because he never finds any means of achieving it acceptable (the only meaningful difference between people who are flat-out reactionaries and people who support social change unless it might cause social conflict or affect entrenched interests is that the former are at least honest), a commenter at my other site asks: "There wasn't a massive backlash after the San Francisco and Massachusetts decisions? This didn't mobilize the Republican vote in Ohio and other battleground states, thus costing Democrats the 2004 election?" Although the question is apparently meant to be rhetorical, the short answer is in fact "no."

I'm presenting the long answer in an updated version of a paper I'm presenting at the MWPSA conference next month, and Dan Pinello does a good job of summarizing the arguments in his new book too. To summarize some of the many problems with the countermobilization thesis:

  • The state backlash was window dressing. The strongest argument for the Kaus backlash thesis are the 13 state initiatives passed in 2004 which passed following Goodridge and Gavin Newsom's actions. However, the actual cost of these initiatives for the cause of gay rights was trivial. In none of these states did gays and lesbians lose state legal privileges (although in a couple states there was a loss of some private benefits); and as Pinello notes, in 9 of the 13 states the new amendments just mirrored statutory bans on gay marriage that already existed. And since state constitutional amendments are generally no harder to change than a statute, the political cost is nominal. A federal constitutional amendment -- which is almost impossible to change -- would be a different issue, but of course the FMA was pure cynical exploit-the-bigotry-of-the-rubes politics with no chance of actually passing. Gay marriage isn't any less popular now than it was in 2004. In other words, there's no evidence that Goodridge actually made the practical task of achieving gay marriage harder. So, clearly, the decision was a net benefit: they gained in Massachusetts (where pro-gay rights legislators have fared better than opponents of the court's decision, belying claims of a backlash), without actually losing ground anywhere else. As a general matter, I also don't believe there's any significant empirical basis for claims that judicial opinions create uniquely large backlashes.
  • The election myth. As Pinello notes, the evidence that gay rights was a decisive factor in the 2004 election is scant-to-nonexistent; once you go beyond eyeballing exit polls and actually do empirical studies of voting behavior, the alleged effects disappears. Moreover, at this point the various strands in the antiliberal obsessions of Kaus and his fellow travelers start to collapse on one another. Kerry in 2004 did historically well given that he was facing a wartime incumbent in a decent economy. Obviously, few people (and Kaus least of all) would claim that this was because Kerry was an incredibly strong candidate. But if a massive anti-gay backlash hurt the Democrats badly, where did the votes go?
  • Predicting 9 of the last 2 backlashes. You may recall Kaus, and may other pundits predicting that the decision of courts in New Jersey to require civil unions would cause a major backlash against the Democrats in the 2006 election. You may also recall that this didn't happen even at the level of simple correlation, which will be promptly forgotten the next time the courts issue a similar holding.

Obviously, substantive victories (achieved in any branch of government) will produce opposition from people who oppose them, which would obviously be a stupid reason not to want to win. But there's no evidence that judicial opinions produce a unique backlash, and there's also no evidence that gay marriage won the 2004 elections for the Republicans.

--Scott Lemieux

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