There Is No Guarantee Against Backlash

To follow up on my article about the passage of legislation granting same-sex marriage rights in New York, Thomas Kaplan has an excellent article noting the ongoing mobilization against same-sex marriage in the Empire State. Particularly instructive is how the president of the anti-LBGT National Organization for Marriage characterized the actions of New York's elected officials:

Brian S. Brown, the president of the National Organization for Marriage, a national group that lobbies against same-sex marriage, said he did not consider the enactment of New York’s law to be a final defeat.

“The notion that you pass same-sex marriage and the issue goes away, that’s one of the biggest lies told by proponents for redefining marriage,” Mr. Brown said.

Instead, he described July 24 as simply the beginning of a new chapter in a long fight, though one fraught with uncertainty.

“The people of New York want to vote on this issue,” Mr. Brown said. “They don’t believe the process was either transparent or fair, and it basically stole the right of the people of New York to vote.”

The "right" of the people of New York to determine the rights of minorities through plebiscites is non-existent, but never mind. The key here is the denigration of a state using traditional democratic procedures. The mistake that some people who believe that judicial decisions granting same-sex marriage rights is that they take the procedural rhetoric of critics ("we don't mind same-sex marriage, we just don't like activist judges ramming it down our throats!") at face value. The problem is that the criticisms of "activist judges" can easily be turned into criticisms of those "out-of-touch elitist legislators in the state capital." And they will be. If New York had granted same-sex marriage rights through a referendum, we'd be hearing about how our sacred Founding Fathers wanted the United States to have a representative rather than direct democracy.

Opposition to same-sex marriage is, at bottom, substantive, not procedural. And hence supporters of same-sex marriage should be willing to use any tool of the American democratic process -- legislation, litigation, or initiative -- that might work.