Gay rights litigation has been very successful in our neighbor to the north, with major victories at both the federal and provincial levels (including with respect to marriage benefits. According to oft-cited conventional wisdom, this success should have been a disaster for the gay rights movement, mobilizing a huge backlash and setting the cause back for generations as citizens were incensed by decision by “activist” courts. The problem is that this is not, in fact, true. Not only did Parliament end up formally recognizing gay marriage, but gay marriage has continued to become more popular, now commanding the support of almost 60% of the Canadian public.
I do not mean so suggest that we can therefore expect a majority of Americans to support gay marriage right away too. My only point is that there is no evidence whatsoever that using litigation has anything to do with it. Courts are likely to provide the initiative with respect to issues that cross-cut existing coalitions (even on issues, such as civil rights and abortion, where national majorities favor reform), and there’s no reason to believe that favorable court decisions will stop inexorable generational trends that will increase support for gay rights. But then, the “countermobilization” argument has never been about evidence. What’s useful about it is providing a component of an ages-old shell game, where complacent elites who aren’t burdened by the status quo nominally support the goals of social change but for who it’s somehow never being accomplished at the right time or in the right way.
[Cross-posted to TAPPED.]