Scott Lemieux notes that opponents of same-sex marriage have, in New York, suddenly discovered a heretofore unknown right of citizens to direct democracy in certain cases, which apparently trumps the previous argument (used in other states) that judicial solutions that bypass the legislature are undemocratic:

The “right” of the people of New York to determine the rights of minorities through plebiscites is non-existent, but never mind. The key here is the denigration of a state using traditional democratic procedures. The mistake that some people who believe that judicial decisions granting same-sex marriage rights is that they take the procedural rhetoric of critics (“we don’t mind same-sex marriage, we just don’t like activist judges ramming it down our throats!”) at face value. The problem is that the criticisms of “activist judges” can easily be turned into criticisms of those “out-of-touch elitist legislators in the state capital.” And they will be. If New York had granted same-sex marriage rights through a referendum, we’d be hearing about how our sacred Founding Fathers wanted the United States to have a representative rather than direct democracy.

My broader point would be that in most circumstances it’s a waste of time trying to modify proposals or procedures because the other side “won’t” be able to continue making their arguments if only your side does this or that, or even more pathetically says this or that. You can’t stop the other side from making arguments. If you think the arguments are good ones — that is, if you agree with them — then you should consider incorporating them in what you’re doing (depending on whether it’s practical or not in the circumstances). You also may be able, in some circumstances, to anticipate the opponent’s argument and change what you’re doing or saying to better win over the small segment of voters who are really open to different arguments.

But what never works is the theory that if we only do this, they won’t be able to say that. Politicians and parties are always perfectly free (at least in a proper democracy!) to make whatever arguments they want, regardless of how rational they are — and partisans are almost always going to swallow those arguments whole, regardless of their strength.

Nice catch! I’ll give him the last word:

Opposition to same-sex marriage is, at bottom, substantive, not procedural. And hence supporters of same-sex marriage should be willing to use any tool of the American democratic process — legislation, litigation, or initiative — that might work.

[Cross-posted at A plain blog about politics]

Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.