Speaking of nominal supporters of gay rights and specious backlash arguments, you may remember that in the wake of the New Jersey civil unions ruling Glenn Reynolds said that “changes like this are better made through legislative than judicial means, and that this may well benefit the Republicans substantially in the coming elections.” So, what does he think about his preferred position on gun rights in D.C. being required by the courts rather than by democratically elected officials? He predicts a massive backlash if the Supreme Court defers to elected officials and upholds the law. Or what about Tom Maguire, who argued that “gay marriage or civil unions is fine if enacted by the state legislature but wrong if crammed down by judicial fiat.” Oddly, I haven’t seen any posts on his part hand-wringing about gun rights “being crammed down the throats of the people by judicial fiat,” but he has approvingly linked to a defense of the decision.
Of course, it is possible to agree with one decision and not the other for doctrinal reasons. But neither Reynolds nor Maguire disputed the legal reasoning of the New Jersey decision (and I’m going out on a limb and assuming that neither gentleman is an expert on New Jersey constitutional law). Rather, they simply made the a priori assumption that the gay marriage issue should be left to elected officials, regardless of a state’s constitutional order, and also assumed that it’s politically counterproductive for gay rights advocates to use litigation. But for some reason, when there’s an issue they actually care about these concerns about backlash and junior-high-school democratic theories mysteriously vanish. Why, it’s almost enough to make me think that claims that litigation produces a unique backlash are disingenuous and incoherent, and that their objections to the New Jersey decision were about substance, not procedure.