The Wages Of Crying "Backlash"

I'm going to go on record saying that the fallout from 2004 was entirely overrated. Anti-gay social conservatives claimed that the backlash to gay marriage sent Bush to victory, but there is little evidence of this. In fact, the best evidence of a backlash that the anti-gay forces can point to is the correlation between Bush's victory and the Massachusetts decision, but the same can be said of anything that occurred contemporaneously (victory, as they say, has a thousand fathers -- hell, there were a few people at the time saying that he won *because* of the Bush Doctrine and the Iraq War.) By that logic, the Red Sox winning the World Series had a hand in Bush's victory.

The argument that is often made is that these court decisions "mobilize" groups who would otherwise just ignore elections. But do the kind of people who get incensed by out-of-state gays acquiring marriage rights sound like your average wishy-washy on-the-fence voter? Or do they sound exactly like the Republican base? Thinking about it logically, the "damage" would have to be would-be Kerry voters who were so incensed by out-of-state gays acquiring rights that they abandoned Kerry (who was opposed to gay marriage) for Bush (who was opposed to gay marriage).

Does that sound like something that would happen? Or is it more likely that social conservatives, already pissed that courts would reasonably interpret the law to allow for the exercise of a fundamental right, chose to loudly interpret a narrow Bush victory as a "backlash" against gay rights?

But on to your original question: should courts take into account the effect that their decisions will have on elections? I say no. There are already two branches of government that act with an eye to how their actions will be perceived by an electorate, why drag the branch that was explicitly protected from democratic accountability into it? While I agree that courts should look outside of themselves (say, by examining evidence and not simply assuming that both sides present equal arguments), there's no reason to try to predict the effect of their decision on the political scene, because (a) who knows if their predictions will even be accurate and (b) it simply has no bearing on whether the people before the court are right or wrong according to the jurist's view of the law.

To use a historical example, the rise of the conservative wing of the Republican party after a generally Democratic period following WWII has variously been attributed to a "backlash" against Roe v. Wade, the excesses of the 1960s, Cold War weakness, labor unions, and every other bugaboo of the Right. "Backlash" thinking is almost always used to attack decisions/people that the Right dislikes anyway, without regard for whether there actually was a backlash (short answer: there wasn't). By paying heed to this counter-mobilization myth, the courts would just be buying into right-wing thought, failing in their duty to conduct legitimate judicial review, and even then they might not actually avoid controversy (the authors of Roe v. Wade were sensitive to this nonsense, and legitimately thought they were settling a controversial issue ... whoops!).

In reality, the rise of the right-wing in our political culture is not the result of a backlash, but the predictable post-Civil Rights era re-ordering of the country, with Democrats becoming the party of the urban and the north and Republicans taking over the south (not so much a "backlash" as the inevitable fracturing of the New Deal coalition). While there were many, many catalysts for this change, one stands out in light of our discussion: Brown v. Board of Education. If Earl Warren would have known that the court's decision would eventually lead to Ronald Reagan and the rise of the GOP, would he still decide Brown the way he did?

In the end, as convinced as he was as to the correctness of the decision, I doubt that he would have cared one bit. I think that we should adopt the same attitude, celebrate the court for bravely coming to the right legal decision on this issue, and let the right-wing worship at the shrine of the Almighty Backlash.

- A