...granting the backlash hypothetically, I never quite understand what the upshot of this sort of analysis is. Say you’re living your life with your partner and you want to get married. But then the local legal authorities tell you that you can’t get married. That seems like unfair discrimination to you, so you inquire with an attorney. The attorney says, yes, your state has never allowed a man to be legally wed to another man, but he agrees with you that it’s unfair. And not just unfair, illegal, a violation of your state constitution’s guarantees of equal rights. So you sue! Then the case comes before a judge and the judge thinks, yeah, the local authorities’ action is a violation of the state constitution’s guarantee of equal rights. Is the judge supposed to rule against you even though he thinks your case has merits, offering as his reasoning “it would be counterproductive to the long-term political strategy of the gay rights movement for me to offer the ruling I believe to be correct”? That doesn’t sound right.
I already said this, but it bears repeating:
Believe it or not, many of us who support gay marriage genuinely believe that bans against gay marriage are in violation of protections afforded by both numerous state constitutions and the federal constitution. Being as the rights of those who are barred from legal protections of marriage are being violated by unconstitutional laws, then it only makes sense to go to court to have those rights vindicated.
You firmly believe that your rights are being violated and that suing in court would give you justice. Now despite this, you are expected to not seek redress in the courts because there is no "public consensus" about your rights and a "strategy" of litigation will provoke a public backlash. How is this sensical, or just, or fair?
Also, I didn't address McArdle's claim that gay marriage litigation doesn't analogize to the litigation that aimed to undo the legal regime of states that disenfranchised blacks, because whereas gays are not being denied the right to participate in democracy, blacks were by having their right to vote stripped away from them. Now it's true that if you're not allowed to vote, the only way you're likely to undo that is to turn to the courts. But even had blacks had the ability to exercise fully the right to vote and all blacks in the south voted in every election, how would they have turned back decades of Jim Crow laws that were acceptable to the racist majority whites? McArdle's reference is more apt than she realizes, though not in the way she intended. Blacks turned to the courts to gain recognition for rights that they plainly were entitled to, but that a majority of voters would not give them. How is this not similar to what gay marriage advocates are doing now when they turn to the courts? How is the civil rights movement not proof that this strategy can succeed?