Jeffrey Rosen's dialogue partner, Richard Just, makes several very good points here. Two are worthy of emphasis. First, he's right to say that "I am not convinced that the backlash against gay marriage is fueled primarily by a dislike for judicial tyranny. Rather, I think it's fueled primarily by a dislike for ... gay marriage." As Just says, opponents of gay rights have mobilized against actions by elected officials, and on the other hand there's been little backlash in Massachusetts or Connecticut, where the policy outcomes show every sign of being stable. Which brings us to his second important point: "Second, I think it's important to point out that the gay rights movement has not worked exclusively through the courts. The reason it sometimes appears that the gay marriage movement has focused on the courts is because those are the only places it has actually had success." This is a pretty high bar for those claiming that litigation is always a bad stretegy to get over.
Meanwhile, Rosen's reply doesn't really address these points squarely, but has a couple of additional howlers. This argument is very strange:
I suspect that that gay people in California as a whole would have had the right to marry more quickly if the political process had taken its course. Repealing Prop 8 will be more difficult, given the mobilization of well-funded anti-gay marriage forces from around the country. (The pro-choice movement learned the same lesson after Roe v. Wade.) I wonder, for example, whether 70 percent of African American voters would have turned out to oppose a legislative, rather than a judicial, declaration of gay marriage...First of all, and rather embarrassingly, Rosen still seems unaware that the California legislature couldn't legalize same-sex marriage; the previous initiative functions like a constitutional amendment. On the second point, and leaving aside the fact that I'm going to guess that if any additional African-American voters "turned out" most of them did so to vote for Barack Obama rather than to vote against same-sex marriage, where's the evidence? Rosen doesn't have any, but that we do know is that less than 10 years ago a much larger majority of Californians voted against same-sex marriage before the California courts had done anything. There's no reason to believe that the judicial intervention is the key variable here.
In addition, trying to backtrack from his previous argument that the enduring support for judicially-protected abortion rights proves...that litigation is a bad strategy, Rosen engages in some revisionist history about Roe, arguing that "[m]ost of the backlash against Roe focused on restrictions on later term pregnancy, which national majorities supported and the Supreme Court eventually permitted." Again, there's no reason to believe that this is true. First of all, none of the statutes struck down in Roe limited their restrictions to late-term abortions. Secondly, Roe itself permitted the state to ban post-viability abortions with a health exemption, and this remains Supreme Court doctrine. The changes in Casey had nothing to do with late-term abortion; rather, the "undue burden" stadard permitted various regulations of abortion that were applicable at any stage of pregnancy. Indeed, the regulations the Court upheld in Casey if anything make it more difficult for women to obtain first-trimester abortions by putting regulatory obstacles in their path. At any rate, it's hard to see how abortion regulations that Roe permitted could have been the source of the backlash against Roe.
--Scott Lemieux
