While I’m on the subject of Prop 8, let me take just a moment to rail against the ridiculous countermobilization myth that inevitably pops up whenever anything socially regressive happens.
The latest of this is (no surprise) Jeffrey Rosen, who inexplicably writes:
I expressed concern that the California Supreme Court’s decision to impose gay marriage by judicial fiat might trigger a backlash that would overturn the decision by popular initiative. Now that the California anti-gay marriage initiative has passed, I take no pleasure in seeing that prediction vindicated. With their overreaching, the California justices have set back the cause of gay marriage across the country. I have students and friends who were married in California since June, and who returned to the state to fight against the initiative.
Here’s the thing. Those marriages were only possible in the first place because of the Court taking action. There was a prior initiative prohibiting them. So how exactly has the cause been set back? One year ago, gay marriage was impossible. It remains so today. And that happened by an extremely narrow margin. If just another percentage point or two could have been swayed then it would be legal, and enshrined that way probably for good.
As it is, the new recourse is simply to pursue another Proposition to overturn Prop 8. And that’s what would have been necessary regardless of what happened with the courts. Voting no on Prop 8 was a guarantee of gay marriage only in a world where the Court had declared the right. In Rosen’s hypothetical world where the judiciary refuses to do its job and strike down unconstitutional denials of rights, gay couples would be 0% better off right now.
The real point is that people like Rosen have a vested interest in a narrative of backlash against court decisions, and they’ll go to any length to fit the facts of a situation into that story. Any judicial decisions that they personally disagree with are derided as “activism.” The paradoxical effect is to accuse judges of playing with politics – while simultaneously demanding that they make political decisions about when the majority will support their findings. It’s an attempt to erase the significance of the judiciary, to turn it into a body that ratifies the beliefs of the current majority and has no role to playing in guaranteeing unpopular (but constitutionally valid) perspectives.
I could go on and on here, but instead I’ll just refer you to Scott Lemieux who has done more than anyone to shut down this silly meme.