Jeffrey Rosen tries to spin the narrow passage of Prop 8 into a triumph for his prediction that In Re: Marriage would instigate a massive backlash, and he's no more persuasive than McArdle. The central problems remain the same: He doesn't explain how the decision made the status quo worse or made the entrenchment of same-sex marriage rights less likely (because such a claim would be transparently false). Nor does he provide any evidence that judicial intervention made same-sex marriage any less popular. And, again, since the striking down of an initiative supported by more than 60 percent led to the passage of an initiative supported by 52 percent, I presume he doesn't provide any such evidence because it doesn't exist. Rosen makes some other assertions that are unburdened by evidence; for example, I would love to see some empirical justification for his claim that the Supreme Court's tepid early-70s gender discrimination decisions torpedoed the ERA. A few other points:
- It's strange that he would bring the recent decision by the Connecticuit courts into it, since he provides exactly no evidence that this decision had produced any backlash or that the court's decision will not produce a stable policy otucome. Given that the governor has essentially conceded that the court's decision will in fact stand, this lack of evidence is understandable but also fatally undermines his central argument. Litigation has led to stable same-sex marriage regimes in two states, and very nearly did in a third. Seems like good odds to me, considering that before the litigation started the number was zero.
- Even more bizarre is his claim that Brown is an example of a decision by a court much more savvy about backlash than the California courts. Is Rosen seriously claiming that a decision that was unenforceable in many of the states it affected and radicalized Southern politics produced less backlash than In Re: Marriage? I don't think Brown provides good evidence of a unqiue judicial backlash, but it certainly led to far, far more backlash than Rosen's bete noires.
- Rosen compares the anti SSM initiatives with the less successful abortion initiatives, but doesn't seem to realize that in doing so he's moving the golaposts to the 40 yard-line. Roe, of course, is at the center of Rosen's claims about judicial backlash. And what we found this year is that after 35 years of Roe ... abortion rights remain popular, and abortion remains legal in every state after having been illegal in 46. How this provides evidence that litigation is counterproductive escapes me. I assume he's arguing that this proves that the repeal of most abortion statutes was inevitable, but this betrays a fundamental misunderstanding of American politics. Veto-point-laden institutions favor the status quo, and this is particularly true for statutes (like bans on abortion) that disproportionately affect the politically powerless. It is much easier for the anti-choice minority to keep existing statutes on the books than to create new ones.
--Scott Lemieux
