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.