As Jeffrey Rosen’s dialogue partner, Richard Just makes several very good points here. Two are worthy of emphasis. First, he’s right to say that “I am not convinced that the backlash against gay marriage is fueled primarily by a dislike for judicial tyranny. Rather, I think it’s fueled primarily by a dislike for … gay marriage.” As Just says, opponents of gay rights have mobilized against actions by elected officials, and on the other hand there’s been little backlash in Massachusetts or Connecticut, where the policy outcomes show every sign of being stable. Which brings us to his second important point: “Second, I think it’s important to point out that the gay rights movement has not worked exclusively through the courts. The reason it sometimes appears that the gay marriage movement has focused on the courts is because those are the only places it has actually had success.” This is a pretty high bar for those claiming that litigation is always a bad stretegy to get over.
Meanwhile, Rosen’s reply doesn’t really address these points squarely, but has a couple of additional howlers. This argument is very strange:
I suspect that that gay people in California as a whole would have had the right to marry more quickly if the political process had taken its course. Repealing Prop 8 will be more difficult, given the mobilization of well-funded anti-gay marriage forces from around the country. (The pro-choice movement learned the same lesson after Roe v. Wade.) I wonder, for example, whether 70 percent of African American voters would have turned out to oppose a legislative, rather than a judicial, declaration of gay marriage…
First of all, and rather embarrassingly, Rosen still seems unaware that the California legislature couldn’t legalize same-sex marriage; the previous initiative functions like a constitutional amendment. On the second point, and leaving aside the fact that I’m going to guess that if any additional African-American voters “turned out” most of them did so to vote for Barack Obama rather than to vote against same-sex marriage, where’s the evidence? Rosen doesn’t have any, but that we do know is that less than 10 years ago a much larger majority of Californians voted against same-sex marriage before the California courts had done anything. There’s no reason to believe that the judicial intervention is the key variable here.
In addition, trying to backtrack from his previous argument that the enduring support for judicially-protected abortion rights proves…that litigation is a bad strategy, Rosen engages in some revisionist history about Roe, arguing that “[m]ost of the backlash against Roe focused on restrictions on later term pregnancy, which national majorities supported and the Supreme Court eventually permitted.” Again, there’s no reason to believe that this is true. First of all, none of the statutes struck down in Roe limited their restrictions to late-term abortions. Secondly, Roe itself permitted the state to ban post-viability abortions with a health exemption, and this remains Supreme Court doctrine. The changes in Casey had nothing to do with late-term abortion; rather, the “undue burden” stadard permitted various regulations of abortion that were applicable at any stage of pregnancy. Indeed, the regulations the Court upheld in Casey if anything make it more difficult for women to obtain first-trimester abortions by putting regulatory obstacles in their path. At any rate, it’s hard to see how abortion regulations that Roe permitted could have been the source of the backlash against Roe.
The Supreme Court yesterday denied cert in two cases asking them to review standards for the “victim impact” statements that the Court decided to reverse course with unusual speed and permit at the sentencing phase of death penalty trials. The dissents make some interesting arguments, but I think they overlook a key constitutional issue:
All 37 states and the federal government that maintain the death penalty allow victim impact evidence in the sentencing phase of murder trials. In the cases denied review on Monday, the evidence was composed of a 20-minute videotape in one case, and a 14-minute videotape in the other. The 20-minute presentation included dozens of still photographs and video clips depicting the victim’s life, set to the music of recording star Enya, with a voice narration by the victim’s mother.
If forcing a captive audience at a state trial to listen to Enya isn’t cruel and unusual punishment, I don’t know what is. I hope a future case will consider the second Eight Amendment issue.
Meanwhile, in the interests of being fair-and-balanced for those Enya fans out there, I present an alternative perspective from an objective critic:
Pondering the fate of post-September 11 pop, everyone predicted what they already wished for–Slipknot undone, Britney in hiding. What happened instead was the unthinkable–sales of Enya’s first album since 1995 spiked 10 months after release. (And she thought that movie where Charlize Theron fucked Keanu Reeves and died of cancer was a promotional coup!) Two years in the making with the artiste playing every synthesizer, the 11 songs here last a resounding 34 minutes and represent a significant downsizing of her New Age exoticism since 1988’s breakthrough, Watermark–it’s goopier, more simplistic. Yanni is Tchaikovsky by comparison, Sarah McLachlan Ella Fitzgerald, treacle Smithfield ham. Right, whatever gets folks through the night. But Enya’s the kind of artist who makes you think, if this piffle got them through it, how dark could their night have been? Like Master P or Michael Bolton only worse, she tests one’s faith in democracy itself.
“Among Oklahomans, Mr. Cook and Mr. White are hardly alone. Though the state’s Democrats still outnumber its Republicans, you would never know it by looking at the election results. Oklahoma voters went for Senator John McCain by almost two to one, bucking the tide that swept Mr. Obama to the presidency. Not a single one of the state’s 77 counties backed Mr. Obama…
“Oklahoma Democrats, with very few exceptions, are the old-line white Southern Democrats,” said David Ray, another political scientist at the university. “They don’t like liberals or liberalism.”
Indeed, the state has a political landscape closely resembling that of the old solidly Democratic South, especially in its southeastern corner, known as Little Dixie, where many Southerners settled after the Civil War. When conservatives of the Old South began abandoning the party decades ago, Oklahoma’s Democrats lagged behind the historical trend. Further, the state has relatively small black and Hispanic populations, and so the Democrats did not absorb as many new voters from those groups as in the states of the old Confederacy.
Another Republican, State Representative Sally Kern, who recently declared that homosexuality was a greater threat to the nation than terrorism, easily won re-election.
Wow, I think according to Mark Penn’s calculations Oklahoma’s votes should count at least 12 times those of quasi-“Americans.” And I expect David Broder to write a column urging that Oklahoma be moved to the front of the primary calendar, as recent elections results have suggested that Iowa and New Hampshire are becoming a touch less American.
John Kyl, April 2005: “For 214 years it has been the tradition of the Senate to approve judicial nominees by a majority vote. Many of our judges and, for example, Clarence Thomas, people might recall, was approved by either fifty-one or fifty-two votes as I recall. It has never been the rule that a candidate for judgeship that had majority support [nice dodge to write the Abe Fortas filibuster out of history!–ed.] was denied the ability to be confirmed once before the Senate. It has never happened before. So we’re not changing the rules in the middle of the game. We’re restoring the 214-year tradition of the Senate because in the last two years Democrats have begun to use this filibuster…This is strictly about whether or not a minority of senators is going to prevent the president from being able to name and get confirmed judges that he chooses after he’s been elected by the American people. And it’s never been the case until the last two years that a minority could dictate to the majority what they could do.”
John Kyl, this week: “Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster. [What does this even mean? How can judges apply law and precedent without considering particular facts of the case?–ed.]”
That didn’t take long! I suspect that Andy McCarthy is about to re-discover that the Constitution does, in fact, permit filibusters within a couple months as well. As, I’m sure, will George Will.
I swear this is a “verbatim”, not a “shorter,” and we are aware of all internet traditions here:
According to the aide, Lieberman’s met with Harry Reid and discussions were very friendly. Reid wanted him to step down from his post as chairman of Homeland Security and Governmental Affairs in exchange for heading a lesser committee. Lieberman reminded Reid of how loyal he’s been to the Democrats in myriad of ways despite the obvious disagreements, and indicated that would be unnacceptable.
Oh, yes, well if you just make an exception for such trivialities as “supporting the Republican candidate,” “speaking at the Republican convention in support of said candidate,” and “grotesquely smearing the Democratic candidate,” he’s been very loyal!
Reid’s choice is obvious: let Lieberman join the Republican conference with no seniority or chairmanships. I completely understand that broad party coalitions inevitable involve making peace with wankers. People who actively support the other party are a different matter. He has no leverage and won’t be a reliable cloture vote in any circumstances. Let him walk.
Jeffrey Rosen tries to spin the narrow passage of Prop 8 into a triumph for his prediction that In Re: Marriage would instigate a massive backlash, and he’s no more persuasive than McArdle. The central problems remain the same: he doesn’t explain how the decision made the status quo worse or made the entrenchment of same-sex marriage rights less likely (because such a claim would be transparently false.) Nor does he provide any evidence that judicial intervention made same-sex marriage any less popular. And, again, since the striking down of an initiative supported by more than 60% led to the passage of an initiative supported by 52%, I presume he doesn’t provide any such evidence because it doesn’t exist. Rosen makes some other assertions that are unburdened by evidence; for example, I would love to see some empirical justification for his claim that the Supreme Court’s tepid early-70s gender discrimination decisions torpedoed the ERA. A few other points:
It’s strange that he would bring the recent decision by the Connecticut courts into it, since he provides exactly no evidence that this decision had produced any backlash or that the court’s decision will not produce a stable policy otucome. Given that the governor has essentially conceded that the court’s decision will in fact stand, this lack of evidence is understandable but also fatally undermines his central argument. Litigation has led to stable same-sex marriage regimes in two states, and very nearly did in a third. Seems like good odds to me, considering that before the litigation started the number was zero.
Even more bizarre is his claim that Brown is an example of a decision by a court much more savvy about backlash than the California courts. Is Rosen seriously claiming that a decision that was unenforceable in many of the states it affected and radicalized Southern politics produced less backlash than In Re: Marriage? I don’t think Brown provides good evidence of a unqiue judicial backlash, but it certainly led to far, far more backlash than Rosen’s bete noires.
Rosen compares the anti SSM initiatives with the less successful abortion initiatives, but doesn’t seem to realize that in doing so he’s moving the goalposts to the 40 yard-line. Roe, of course, is at the center of Rosen’s claims about judicial backlash. And what we found this year is that after 35 years of Roe…abortion rights remain popular, and aboriton remains legal in every state after having been illegal in 46. How this provides evidence that litigation is counterproductive escapes me. I assume he’s arguing that this proves that the repeal of most abortion statutes was inevitable, but this betrays a fundamental misunderstanding of American politics. Veto-point-laden institutions favor the status quo, and this is particularly true for statues (like bans on abortion) that disproportionately affect the politically powerless. It is much easier for the anti-choice minority to keep existing statutes on the books than to create new ones.
I thought I was aware of most of the major pillars of Clinton-era foolishness, but I had no idea that there had been thigh-rubbing about Clinton having a hot tub (just like Saint Reagan, although the future Pulitzer Prize winner (!) MoDo neglected to mention that). Which leads us to one of the most horrifying passages in the recent history of American journalism:
I took some friends along so we could float a few theories about the iconic meaning of Bill Clinton installing a hot tub on the South Lawn — Jerry Nachman, the former New York Post editor who now works in TV; Dee Dee Myers, the former White House press secretary who now lives in L.A. and works at Vanity Fair; Barbara Hower, author and TV personality; Rebecca Liss, a reporter for The Los Angeles Daily Journal, and Mickey Kaus, a magazine writer.
Their comments are precisely as illuminating as you would expect. The person who wrote the column retains her presitgious editorial real estate for reasons I could not dream of explaining. [Via, of course, Somerby.]
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 amendment statute 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.