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August 6, 2006
Lawsuit Fatigue In Politics

US News has an interesting article on the unforeseen political backlash against the gay-rights movement for their pursuit of public policy via lawsuit. It looks like the constant demand for judicial imposition of public policy has finally lost legitimacy with the American public, regardless of the cause:

For advocates of same-sex marriage, the outlook is dark, that early enthusiasm tempered by a wave of anti-gay-marriage voter initiatives and a string of courtroom losses. And more court decisions and initiatives expected this year could result in devastating setbacks. "We may face a reality by the end of this year that is so radically different ... that we may have to completely rethink and rework how we're going to move forward," says Ed Murray, a gay Washington State representative. Jordan Lorence of the conservative Alliance Defense Fund is more blunt: "One side is clearly prevailing, and one is losing."

The losses may have been self-inflicted. Despite some early recognition of gay couples' legal rights in Hawaii and Vermont courts, the Massachusetts case seemed to spark a torrent of voter hostility. Today, 44 states have laws restricting marriage to a man and a woman, and voters have written gay-marriage bans into the constitutions of 19 states--16 since 2003. ...

Some activists are putting more emphasis on backing gay-friendly candidates in local and state races and winning more legal rights--but not necessarily marriage--in the legislatures. A group of nearly 250 gay-rights supporters recently urged less focus on marriage, saying it "has left us isolated and vulnerable to a virulent backlash." Legislative victories could avoid that backlash. "The politics is driven by the lawsuits," says Matt Daniels of Alliance for Marriage, which opposes gay marriage. "No more lawsuits, no more state amendments." Matt Foreman of the National Gay and Lesbian Task Force acknowledges, "Our legal strategies got ahead of our political strategies."

Their pursuit of judicial imposition of gay marriage had a rational basis. After all, abortion-rights activists eventually won their battle in Roe v Wade, a decision that has created decades of hostility and controversy. Gay activists sought the same almost-unassailable legal fiat for marriage and other issues, exchewing political processes as too evolutionary for the quick victories they desired.

Unfortunately, this led to an escalation by their opponents in legislative action. Since judges and justices had begun to issue decrees legalizing gay marriage and ruling statutes prohibiting them unconstitutional (within state constitutions), people organized to amend state constitutions to block recognition of gay marriage. This, unfortunately, makes undoing such regulation much more difficult later, when the public might become more accommodating. Judges cannot overrule constitutional amendments, and usually it takes a two-thirds vote to change it back.

This is what happens when people attempt to change public policy through judicial fiat rather than through the legitimate political process. Short-cutting policy formation polarizes the electorate, and in the case of this particular issue which has so little public support, it creates a backlash that seeks to undo the undemocratically-produced policy. It creates opposition from apathy and erodes public support.

The gay-rights movement has to learn that their policy goals have to gain approval from the majority of the electorate to have any political legitimacy. Judges do not bestow this legitimacy; legislatures do. They need to make the long-term investment into building coalitions and promoting candidates who will represent their issues. Until that happens, they will never meet those goals, and their efforts to have them imposed on the public by a handful of judges only creates resentment and prejudice.

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Posted by Ed Morrissey at August 6, 2006 2:26 PM

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