Authentic self-appointed voice of the American working class Lady Lynn Forrester de Beaucoup de Argent Naturellement Je Suis Un Ailier Droit Rothschild just can’t stop the wanking.
Author Page for Scott Lemieux
Kevin Drum suggests that “Obama has a notable streak of temperamental caution that serves him well, but it could also betray him. Maybe he could have turned the tide against Proposition 8 in California if he’d been willing to take a risk on its behalf.” In this case, it’s a fair knock.
I can understand the difficulty of the problem. Injecting new issues into a campaign is a loser’s strategy; when the most salient issues favor you, you don’t rock the boat. Obama’s primary and general election campaigns were superbly disciplined and stayed consistently on message, and I can understand wanting to avoid the same-sex marriage issue.
But, ultimately, in the last week or two of the campaign it was overwhelmingly clear that Obama was going to win, it was clear that Prop 8 was going to be close, and it was also clear that same-sex marriage was going to be an extremely marginal issue in the federal election. Obama had already come out against it; if the McCain campaign was planning to exploit it they would have already done so. Making a statement (however cautious) against Prop 8 in the last week of the campaign could have made a major contribution to human rights without threatening Obama’s lock on the electoral college. Even to a risk-averse politician, that should have been a no-brainer, and it’s fair to criticize Obama for failing to do the right thing.
In response to Matt’s point here, if I understand correctly most gay and lesbian rights groups (especially in recent years) haven’t opposed all litigation (Goodridge was the result of a carefully coordinated combination of seven lawsuits with support from LAMDA, for example.) Rather, they have opposed federal litigation, which given the non-existent chance of victory with the current composiiton of the federal courts makes sense. On the other hand, as a practical matter, it would in fact be difficult to file a serious lawsuit seeking your marriage rights without any support from prominent civil rights organizations. Nothing can stop you from filing, but without the resources to pursue the a good case through appeals, amicus briefs from prominent organizations and individuals to signal sympathetic judges, etc. your suit is unlikely to get anywhere. So prominent national organizations do have some (although far from total) ability to control the process. (And, of course, there’s often disagreement among organizations about the optimal strategy, which further complicates things.)
The potential tension between the immediate interests of plaintiffs and the demands for a coherent national strategy was also a major part of the LDF’s civil rights litigation (and a particularly difficult problem, since finding plaintiffs in the Jim Crow south, for obvious reasons, wasn’t easy.) Mark Tushnet’s book is very good on this subject.
My prediction that someone would argue that Prop 8 “lends credence to the claims that litigation tends to produce a disproportionate backlash” has been proven correct by Megan McArdle. A few points in response:
- McArdle, first of all, provides no evidence in support of a unique countermobilization effect, although there’s no compelling theoretical or empirical reason to believe it exists. But she also fails to provide any evidence that it applies in this case. Did same-sex marriage become less popular after the Court’s decision? Did anti-SSM groups become more politically mobilized after it? One would think that this is the minimum that would be necessary for the argument to be true, but McArdle does not offer a shred of support for either.
- The claim that courts were “the wrong venue” and should be dealt with legislatively runs into the obvious problem that the legislative avenue was closed in California. The decision by California’s (elected) courts was, in fact, consistent with the preferences of a majority of California’s legislators and its governor, but these elected officials were not free to enact their preferences until the court acted. The civil rights analogy McArdle tries to distinguish is, in fact, completely appropriate to this case.
- It’s also unclear why she thinks the judicial action in this case was counterproductive. There is now a constitutional amendment enshrining discrimination into the state constitution. Prior to the court acting, there was… a
constitutional amendmentstatute with the force of a constitutional amendment* enshrining discrimination into the state constitution. How this made the status quo worse is unclear, and McArdle doesn’t provide any help. And, of course, it seems hard to argue that the passage of an initiative supported by such a bare majority could have been considered inevitable. Clearly, the court’s decision increased the chances of an enduring right to same-sex marriage. And the only way of obtaining this right in the future — a successful initiative — remains equally available.
Rather than providing evidence for the countermobilization myth, then, the passing of Prop 8 proves that people will try to fit virtually any set of facts into the narrative no matter how poor the fit.
*As paperwight correctly notes in comments, one of the laws struck down in In Re: Marriage is technically a statute, but because it was passed by initiative under California law it has the same effect as a constitutional amendment, as it cannot be amended by an ordinary statute from the legislature. The key here is that the status quo is no worse than it was prior to the Court’s intervention.
The Man Who Gave Us Bush decides he hasn’t disgraced himself quite enough in the last decade and decides to not only to suggest that Barack Obama is an “Uncle Tom,” but to declare that he’d be fine having that as his legacy. Well, he said it, I didn’t. (In fairness, it’s not as if the fulfillment of his 2000 goal to elect George W. Bush had any negative consequences for poor people in this country, and the 0% of the vote he obtained from African American women in delivering the election to Bush makes him an especially powerful spokesman for that community.)
I was surprised by the results of two major initiatives yesterday. The pleasant surprise was Measure 11 in South Dakota. The rape-and-incest exemption, while essentially meaningless in terms of how a ban would actually work on the ground, are the kind of superficial “moderation” that I was worried would suck in enough additional voters to pass it — I’m happy to be wrong. The failure of a common-but-stupid parental notification requirement in California and the zygote-rights initiative in Colorado are also welcome.
The passage of Prop 8 in California, on the other hand, as Dana says is a disappointment and a disgrace. Although I’m sure some people will spin it this way, though, I don’t think it really lends credence to the claims that litigation tends to produce a disproportionate backlash. Same-sex marriage is, after all, considerably more popular in California than it was five years ago, and there’s little reason to believe that an initiative codifying same-sex marriage would have done better absent the judicial ruling. I wish it had gotten a few points more popular, but I doubt that the judicial intervention was a key factor. The other frequent argument used in 2004 was that judicial rulings on same-sex marriage hurt the Democrats electorally, but since Obama carried the state by 24 points I think it’s safe to declare this critique inoperative. And finally, it’s not much of an argument for litigation being counterproductive, as the status quo isn’t any worse than it was before the summer, and the initiative was close enough to make it a good gamble.
It’s enormously likely that Prop 8 is just temporarily delaying the inevitable — but that’s little consolation to the Californians who have once again been stripped of their fundamental rights.
Our long national nightmare is…
What a great moment.
…we are celebrating with Rittenhouse Rye here. Sweet.
The Trotskyites at Fox News call Ohio for Obama.
Alabama called for McCain. That’s it, we’re over.
MSNBC calls Pennsylvania for the good guy.
Liddy Dole going down will be sweet.
I would suggest that Rob’s forthcoming cruel division of PUMAs start with this classic. For the next four years, I hope we can all remember that not only is making words out of “Obama” the sign of a truly great wit, it gets funnier and funnier every time you do it.
I declare this Open Election Thread the First.