The Fabled Goodridge Backlash

I have an article up at TAP about the recent rejection of an anti-gay constitutional amendment in Massachusetts and its implications for claims that using litigation is a counterproductive strategy. I also discuss the extent to which normative attacks on Goodridge rarely come from any kind of coherent democratic theory. At times like this, it’s especially useful to strip away too-clever-by-well-more-than-half “contrarian” arguments and explain what’s actually happening:

Despite the attempts of contrarian pundits to muddy the waters, what happened in Massachusetts is simple, and a straightforward win for equality and justice. Under American constitutionalism, for better or worse, the judiciary scrutinizes legislative enactments to ensure their compliance with state and/or federal constitutions. The Massachusetts Supreme Judicial Court reached a decision that did not contradict the text or purpose of the relevant provisions of the state constitution, and as far as I know nobody has argued that the decision was inconsistent with principles previously expressed by the Court’s majority. While contestable, in other words, the court’s holding was hardly an illegitimate “usurpation” of democratic prerogatives. Since the court’s decision, same-sex marriage rights have grown more popular in the state, and supporters of equality have fared better at the ballot box than opponents. Less than five years later, opponents of same-sex marriage were unable to scrounge up even the bare 25 percent of the vote necessary to permit a vote on an amendment to go forward, and polls suggested that the referendum would lose in any case.

And while you’re there, check out Kay Steiger’s article about strategies for overriding Ledbetter.