The Myth of Judicial Backlash.

Scott Lemieux on the meaning of Maine's Question1:

In an unfortunate exception to a happy election night for progressives in 2008, California voters passed Proposition 8, which overturned a state court decision holding that the state's ban on same-sex marriage was unconstitutional. This led to another predictable round of claims that judicial opinions produce a disproportionate backlash and that therefore using litigation to pursue changes to the status quo is always a mistake. The California justices, argued Jeffrey Rosen, were "naive and overconfident blunderers." "The issue was pressed too quickly," asserted The Atlantic's Megan McArdle, "and in the wrong venue." The conventional wisdom of pundits assures us that landmarks like Roe v. Wade and Goodridge v. Massachusetts represent similar counterproductive "blunders."

Oddly, this same group has had very little to say about the failure of the 2009 initiative seeking to overrule Maine's same-sex marriage law. In broad outlines, the outcome was strikingly similar to California's in 2008: Well-motivated conservative groups attacked the state's legalization of same-sex marriage using similar arguments and successfully overturned it via the ballot. Maine was ignored by professional contrarians, however, for the obvious reason that Question 1 overturned an act of the legislature, not a judicial ruling. Maine represents another example of a fact that should be obvious: Opposition to judicial decisions legalizing same-sex marriage is substantive, not procedural. Prop. 8 and similar initiatives are motivated by opposition to same-sex marriage, not by some principled opposition to judicial review.

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