For Conservatives, There Will Never be a Right Way to Change the Status Quo

In the unfortunately timed post Erik mentioned last week calling out Obama for being incoherent on same-sex marriage, Ross Douthat made a familiar claim:

The first reason is that while the increase in public support for same-sex marriage over the last two decades has been astonishingly swift, it has not been irreversible. Instead, sudden bursts of legal momentum – mostly driven by judicial rulings, from Massachusetts to Iowa – have often prompted temporary backlashes. In Gallup’s polling, support for same-sex marriage rose from 35 percent to 42 percent between 1999 and 2004, but then dropped back to 37 percent; it rose to 46 percent just before Obama’s 2008 victory, but then dropped back to 40 percent a year later. Today’s 50 percent support likewise represents a slight drop-off from the high of 53 percent in the survey Gallup conducted last year.

This pattern suggests that Americans grow more resistant to same-sex marriage the more they feel that it’s being imposed upon them by an unelected judicial elite, and grow more supportive the more it seems to be gaining ground organically.

First of all, the very modest and temporary “backlash”  to some judicial rulings doesn’t prove what Douthat does, because there’s no meaningful comparison with cases where legislatures have granted marriage equality, a less typical and more recent phenomenon.    The fact that the Maine initiative he later discusses was passed in response to action by elected legislators makes it quite clear that opposition to same-sex marriage is driven by substantive, not procedural, concerns.   Opponents of same-sex marriage have never acquiesced to legislative-driven changes.  

But the even bigger problem is that the big picture of the polls he cites completely repudiates the judicial backlash thesis.   After nearly a decade of largely litigation-driven gains by proponents of same-sex marriage same-sex marriage has become much more popular.   If that’s the bad effects of favorable judicial rulings, I hope we see more of them.    And the fact that president has endorsed marriage equality at the outset of what figures to be a very tough re-election fights just draws a line under that. This concern trolling from the side that knows very well that it’s losing the medium-term war is about as unconvincing as it gets.

But, then, I don’t really need to refute Douthat’s thesis when he’s generous enough to do it for me:

A president is not an unelected judge, but a public flip-flop on the issue by the nation’s chief executive might feel like yet another elite attempt to pre-empt a debate that appears to be moving toward a resolution, but hasn’t quite been settled yet.

So, in other words, when elected officials back same-sex marriage they’re also “elites” trying to force same-sex marriage on an unwilling public (and changing your mind, unlike continuing to favor marriage discrimination, is presumptively illegitimate “flip-flopping” — a neat trick.) For Douthat, like most opponents of same-sex marriage, citing procedural objections is just an opportunistic shell game. No matter how same-sex marriage is liberalized, to opponents it will never be done in the right way. And arguments that opposition to marriage equality is driven by principled hostility to “judicial activism” are increasingly farcical in light of the Republican campaign to strike down the centerpiece domestic initiative of the Obama administration based on weak, ad hoc constitutional arguments almost nobody was advancing in 2008.