The Myth of Judicial Backlash

In an unfortunate exception to a happy election night for progressives in 2008, California voters passed Proposition 8, which overturned a state court decision holding that the state's ban on same-sex marriage was unconstitutional. This led to another predictable round of claims that judicial opinions produce a disproportionate backlash and that therefore using litigation to pursue changes to the status quo is always a mistake. The California justices, argued Jeffrey Rosen, were "naive and overconfident blunderers." "The issue was pressed too quickly," asserted The Atlantic's Megan McArdle, "and in the wrong venue." The conventional wisdom of pundits assures us that landmarks like Roe v. Wade and Goodridge v. Massachusetts represent similar counterproductive "blunders."

Oddly, this same group has had very little to say about the failure of the 2009 initiative seeking to overrule Maine's same-sex marriage law. In broad outlines, the outcome was strikingly similar to California's in 2008: Well-motivated conservative groups attacked the state's legalization of same-sex marriage using similar arguments and successfully overturned it via the ballot. Maine was ignored by professional contrarians, however, for the obvious reason that Question 1 overturned an act of the legislature, not a judicial ruling. Maine represents another example of a fact that should be obvious: Opposition to judicial decisions legalizing same-sex marriage is substantive, not procedural. Prop. 8 and similar initiatives are motivated by opposition to same-sex marriage, not by some principled opposition to judicial review.

Even viewed in isolation, the narrow passage of Prop. 8 represented pretty feeble evidence for claims that judicial rulings produce a unique level of backlash. Most significantly, a 2000 initiative banning same-sex marriage passed 61.4 percent to 38.6 percent; Prop. 8 passed 52.2 percent to 47.8 percent. In other words, the California court's ruling did not arrest long-term trends in favor of same-sex marriage. More important, no one state can provide evidence about the effects of the courts, because we cannot know what would have happened if legislatures (rather than courts) had acted. To attribute the results of Prop. 8 to anger at the courts -- as opposed to a more general opposition to same-sex marriage -- is begging the question. We therefore should consider other states to see if legislative grants of same-sex marriage are inherently more stable than similar judicial holdings. Such comparisons make it clear how weak the case for a unique judicial backlash is.

The 2003 decision of the Massachusetts Supreme Judicial Court legalizing same-sex marriage was routinely described by pundits as ill-advised and counterproductive. But three years after the decision, opponents of same-sex marriage were unable to obtain even the 25 percent minority necessary to put the issue on the ballot. The first state to grant same-sex marriage rights will continue to do so for the foreseeable future. Similarly, judicial rulings requiring that an end to discrimination against same-sex couples in state marriage statutes in Connecticut and Iowa have produced seemingly stable policy victories with little discernible political effects. The same is true of litigation-driven changes to marriage laws in Vermont. So, it is clear from numerous examples that the courts can be a successful route to a stable policy of marriage equality.

On the other hand, New Hampshire remains the only state where a legislative approach was successful. This raises serious doubts about another pillar of countermobilization dogma: Because liberal states are likely to legalize marriage anyway, judicial decisions are superfluous. When New York courts failed to legalize same-sex marriage in 2006, for example, some claimed that the judges had actually done gays and lesbians a favor, since legislative action would be less contested by opponents to marriage equality. But three years later, same-sex marriage doesn't seem any closer to happening, while it is unlikely the gridlocked Assembly in Albany would have retaliated against a judicial decision.

So Iowans have access to same-sex marriage, while New Yorkers do not, but I'm sure the gays and lesbians being discriminated against know that at least they made a small number of pundits feel better that they were now seeking to vindicate their rights in the "proper" venue. (What purpose judicial review is supposed to serve if it isn't to protect unpopular minorities from the arbitrary denial of fundamental rights, however, remains unclear.)

Admittedly, these comparisons, while instructive, are indirect. This brings us to Maine, which represents the best control case imaginable. Maine and California are both liberal states, in which an authoritative state institution announced a change granting marriage equality to same-sex couples in a similar time frame, causing reactionary opponents of the change to mobilize and get an initiative seeking to overturn the new status quo on the ballot that November. While no political comparison is perfect, this one is close: The only meaningful difference is that the courts were responsible for the policy change in California, while the legislature changed the laws in Maine. But the outcome was virtually identical, with opponents of same-sex marriage actually getting a slightly higher share of the vote than they did in California. In a rational world, this should finally stop people from claiming that judicial review is the key variable accounting for opposition to same-sex marriage.

And this should not have been surprising. The extensive overlap between people decrying "judicial activism" in the case of same-sex marriage and expressing outrage over the failure of courts to overturn the decisions of elected officials in the areas such as eminent domain and affirmative action makes it clear that conservative activists have no principled opposition to judicial intervention into contested policy disputes (as opposed to selective opposition to judicial opinions they dislike on the policy merits).

Moreover, there's plenty of examples of strong countermobilization when legislators change laws to protect gay and lesbian rights. To cite two very prominent examples, Anita Bryant's campaign in Florida to roll back civil rights for gays and lesbians, as well as the infamous Colorado initiative preventing any state entity from protecting civil rights based on sexual orientation that was ultimately struck down by the Supreme Court in Romer v. Evans, were reactions against the actions of democratically elected public officials, not courts. The idea that opponents will accept changes favorable to gay and lesbian rights with equanimity as long as judges do not announce them has no basis in reality. Maine is just the most recent example.

None of this is to say that litigation is always, or even very often, a good strategy for achieving social change. There are real limitations to what courts can accomplish, and intelligent litigators are well aware of them. But the argument -- so often made even by ostensible supporters -- that civil-rights groups should completely abjure litigation even in contexts where it can be successful is silly. The idea that changes in support of gay and lesbian rights can preempt controversy and organized opposition as long as the courts stay out of it is a pernicious myth.

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