The Coming Countermobilization Argument

In the wake of the decision of the Supreme Court of New Jersey that same-sex couples are entitled to the same benefits as heterosexual married couples (although not necessarily under the rubric of “marriage,”) we’re bound to hear a lot of speculation about how this will affect the upcoming election (which I’m sure will be forgotten should the Democrats take the House and pick up seats in the Senate.) As I have previously explained at TAP, I think the effect of these decisions is often overstated, and there’s no evidence that it matters whether it’s legislation of litigation that leads to the policy change. I also don’t think that it matters a lot whether the courts call the equal civil rights required for same-sex couples “marriage.” One thing Jack Balkin leaves out of his otherwise fine account is that while the Goodridge decision was an important issue in the 2004 elections in Massachusetts, the pro gay marriage side won. There’s no indication at this point that the policy in Massachusetts will be any less stable than the one in Vermont; both seem like one the voters of the state can live with.

Matt Yglesias also makes an important point. We can argue about whether judicial decisions that advance minority rights are good for the Democratic Party, but claims that their bad for the interests themselves are completely implausible. The important question to ask in such circumstances is “compared to what?” Gerald Rosenberg was correct in his landmark book The Hollow Hope to argue that Brown v. Board had almost no impact on school integration in the Deep South prior to the Civil Rights Act. Where I believe he is mistaken is to use this data to conclude that the courts are therefore “flypaper” that attract interest groups against their own interests. I’m sure the NAACP would have preferred a legislative solution, but the option was not on the table–the hammerlock of segregationists in the Senate meant that it couldn’t even pass anti-lynching legislation, let alone desegregate the schools. What are you going to do, lobby the Alabama legislature? Litigation wasn’t the ideal option, but it was the best option. And the same is true of gay rights litigation. The initial victories in the battle for equal rights are very likely to be won in the courts, and there’s no reason to believe that this will stop progress toward equal rights.

[Cross-posted at TAPPED.]