WHEN DID RULINGS OF THE MASSACHUSETTS COURTS BECOME NATIONALLY BINDING? Mickey Kaus has the latest iteration of the countermobilization myth:

Even in a highly Republican town like Plano, in other words, the religious objection to gay marriage isn't the crucial objection. Fear that moral entropy will envelop your family's children is the crucial objection. I don't see how that fear is addressed theologically. I would think it has to be addressed practically, over time, by repeat demonstration . But time is one thing a rights-oriented, judicial route to gay marriage doesn't allow.

I've been through the extensive theoretical and empirical problems with the claim that litigation is a more divisive means of achieving social change than legislation many times, so I won't repeat them in detail here. But leaving aside the fact that last year Kaus was using anecdotes from Plano on the assumption that it was a bastion of cultural liberal elitism, what's remarkable about the argument is that the slow, piecemeal, state-by-state evolution is exactly what litigation is producing. While on an abstract level rights might be universal and require immediate remedies, in actual politics rights claims are accepted in some jurisdictions and not others, balanced against competing state interests, etc. What litigation has actually produced are marriage or civil union rights in a few states that can demonstrate that such rights will not, in fact, produce the predicted social chaos. In American politics, courts are likely to act first on such issues because existing political coalitions have little incentive to upset the status quo first (even on issues, such as civil rights and abortion, where the courts have been closer to current public opinion than the legislative status quo). And in the case of gay marriage, this is likely to proceed on a state-by-state basis for a while.

It should also be noted that, just as the backlash to the New Jersey decision mandating civil unions that Kaus predicted before the 2006 midterms didn't actually occur, the countermobiliztion myth isn't faring any better in comparative perspective. Responding to Canada's litigation-driven nationalization of gay marriage rights, the recently elected Conservative government made a single token attempt to pass legislation reinstating the ban on same-sex marriage, and after its crushing defeat the Prime Minister announced that "I don't see reopening this question in the future." The fact is that reactionary opposition to change in issues like gay marriage is overwhelmingly substantive, not procedural, and anyone who thinks that opposition will go away as long as the courts aren't involved just because activists prefer to talk about "judicial activism" would probably lend their car keys and American Express card to someone they just met at a mixer for people on parole for fraud.

--Scott Lemieux

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