The Good News for Gay Rights (The American Prospect)

[marmar]

The Good News for Gay Rights

Victories won by "undemocratic" courts -- like the Massachusetts Supreme Court, which legalized gay marriage in 2003 -- haven't produced the backlash that many pundits expected.

Scott Lemieux | June 19, 2007 | web only



As I noted in this virtual space last year, many pundits -- some of them at least nominal supporters of gay marriage -- had argued that the decision of the Massachusetts Supreme Judicial Court to legalize same-sex marriage in 2003 (in the Goodridge v. Public Health Services case) actually spelled disaster for supporters of equality for gay and lesbian Americans, given the backlash it would inevitably spark as a clear-cut example of judicial overreach. These arguments became particularly pronounced after George Bush won a narrow re-election victory in 2004 while upwards of a dozen initiatives denying same-sex marriage benefits passed in the states.

There was always less to this sequence of events than met the eye. None of these initiatives actually rolled back existing gay marriage benefits, and most of them did not roll back civil union benefits. Nor were most of the states where these initiatives passed likely to change the status quo in a progressive direction anytime soon. And claims that gay marriage was a decisive factor in the 2004 elections have not held up well to close empirical scrutiny. Still, they lent the contrarian take on Goodridge some superficial plausibility.

But some funny things have happened in the wake of the progressive "loss" in Goodridge. A few states have provided civil union benefits to same-sex couples without provoking a discernible backlash. (You may remember that many of the usual suspects predicted dire consequences for the Democrats' 2006 electoral showing in the wake of the New Jersey court's requiring civil union benefits; you may also have noticed hearing little of those predictions since.) And on June 14, something even more noteworthy occurred. In Massachusetts itself -- the state where, presumably, the backlash against "undemocratic" courts "usurping" the will of the people should be strongest -- attempts to pass a constitutional amendment overruling Goodrige failed by an overwhelming 151-45 vote in the state assembly. Same-sex couples will be granted marriage rights in Massachusetts for at least the next five years, and almost certainly permanently.

This is excellent news in itself. And it further discredits the countermobilization myth beloved by so many moderate pundits -- the notion that judicial interventions into contested social issues inevitably anger the public and create a bigger backlash than what would be sparked by legislative action. This claim has always been both theoretically dubious and empirically under-supported. And in addition to the recent gay marriage-related cases here, our neighbor to the north has provided further demonstration of the problems with the idea that victories won in the courts are inevitably Pyrrhic.

As the culmination of a successful litigation campaign, the Canadian Supreme Court made clear that the federal government would have to grant benefits to same-sex couples in 2004. Again, if the claims that using litigation as a tool in the struggle for gay and lesbian equality is counterproductive were correct, we would expect a massive backlash. Instead, after a desultory, token attempt to roll back gay marriage legislation (which ended with several of his own cabinet members voting against the revocation of rights), Conservative Prime Minister Stephen Harper declared that "I don't see reopening this question in the future." Such predictions, in other words, have fared no better elsewhere than they have domestically. .....(more)

The complete piece is at: http://www.prospect.org/cs/articles?article=the_good_news_for_gay_rights

[eridani]

1. From Blue Grit Democrats, by Laura Flanders

The next Democratic candidate considering running for president would do well to talk to activists like Justin Turner of Cincinnati Citizens to Restore Fairness, fighting to overturn the anti-gay Article XII.

From a skimpy minority of 32 percent who voted in favor of repeal in February 2004, the Restore Fairness campaign won over 53 percent of the vote on November 2. The campaign set a goal of turning out 60,000 supporive votes; the repeal proposition won with over 65,000. The gains came disproportionately from the most conservative parts of town.

"The key was to put a human face on the message and to address it head on," Turner told me on the phone from his home after the proposition passed.

Kerry campaigned in Cincinnati with the losing, instead of the winning, side. he brought onto the stage with him the one group of African American leaders that was not part of the Cincinnati for Fairness Coalition.