Jonathan Rauch (via Sullivan) makes the familiar argument that for the constitutional challenge to Prop 8 to succeed would really be a strategic loss. This is wrong, and if you don’t believe me believe Michael Klarman, who started his research sympathetic to arguments like Rauch’s and found that the facts just couldn’t support them. Indeed, gay and lesbian rights provides a particularly strong example of the fact that there’s no way of winning hard-fought changes to the status quo that doesn’t generate opposition, and there’s no evidence at all that judicial opinions generate more backlash than the commensurate actions of elected officials. The only way to avoid backlash is just not not win anywhere.
A related problem with Rauch’s argument is that he greatly overestimates the extent to which changes in public opinion will find themselves manifested in the actions of state legislatures. This is a common issue with similar arguments made about Roe v. Wade. Consider this recent one from Steve M.:
If we could go back, would we want to give up Roe to avoid the anti-abortion backlash, the violence, the relentless chipping away at abortion rights? I’m not sure — haven’t the antis chipped away at abortion rights and made abortion effectively legal only in a handful of states, just as it probably would have been without Roe?
Again, this backlash wasn’t just about Roe — indeed, the backlash against the initial move towards reform by state legislatures had caused the drive to liberalization to stall completely by 1973. And while the chipping away of abortion rights is indeed a serious problem, there’s no way that the situation isn’t much better than it was before Roe, when abortion was illegal in 46 states. Abortion being formally legal in all 50 states isn’t, in itself, all that is needed, but it beats abortion being illegal in many states (and it’s not as if states would have abandoned other regulations had Roe not happened.) As with gay and lesbian rights, the opposition to reproductive freedom was substantive, not procedural.