Initiatives, Good and Bad

I was surprised by the results of two major initiatives yesterday. The pleasant surprise was Measure 11 in South Dakota. The rape-and-incest exemption, while essentially meaningless in terms of how a ban would actually work on the ground, are the kind of superficial “moderation” that I was worried would suck in enough additional voters to pass it — I’m happy to be wrong. The failure of a common-but-stupid parental notification requirement in California and the zygote-rights initiative in Colorado are also welcome.

The passage of Prop 8 in California, on the other hand, as Dana says is a disappointment and a disgrace. Although I’m sure some people will spin it this way, though, I don’t think it really lends credence to the claims that litigation tends to produce a disproportionate backlash. Same-sex marriage is, after all, considerably more popular in California than it was five years ago, and there’s little reason to believe that an initiative codifying same-sex marriage would have done better absent the judicial ruling. I wish it had gotten a few points more popular, but I doubt that the judicial intervention was a key factor. The other frequent argument used in 2004 was that judicial rulings on same-sex marriage hurt the Democrats electorally, but since Obama carried the state by 24 points I think it’s safe to declare this critique inoperative. And finally, it’s not much of an argument for litigation being counterproductive, as the status quo isn’t any worse than it was before the summer, and the initiative was close enough to make it a good gamble.

It’s enormously likely that Prop 8 is just temporarily delaying the inevitable — but that’s little consolation to the Californians who have once again been stripped of their fundamental rights.