The Plank

Notes On Stevens And Prop. 8

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-- In my (seemingly premature) goodbye to Ted Stevens last week, I did note that strategic Republicans who wanted to keep the seat in GOP hands might vote for Stevens anyway, figuring that if his conviction is upheld on appeal and he's forced out of the Senate, the seat will at least fall to a generic (or not-so-generic) Republican. (And in the unlikely event that his conviction is overturned, then they're just prescient!) If Stevens's lead holds up, it isn't necessarily evidence that Alaskans are pork-addicted, felon-coddling morons--it's just as possible to interpret the result as simply a product of rational voters in a very conservative state doing their best to keep a Senate seat out of Democratic hands. (Which is not to say that they're not also pork-addicted felon-coddlers...)

-- In the wake of Proposition 8's narrow victory, Megan McArdle lays some of the blame on gay rights activists for pushing their agenda through litigation rather than legislation. While I'm generally sympathetic to this argument out of principle, it doesn't apply here. Recall that in 2000, Californians passed Proposition 22, an initiative statute banning gay marriage. Under California law, an initiative statute can only be overturned by another initiative, not by act of the legislature (although the legislature decided to pass a gay marriage bill anyway that would have been ineffective, though perhaps symbolically valuable, had it not been vetoed). As a result, there was no real legislative route open to gay rights activists. One can argue that they acted hastily in bringing a constitutional challenge to the gay marriage ban too soon, but Proposition 8 (which makes the gay marriage ban constitutional, rather than just statutory) was going to be on the ballot anyway this year. So it probably made sense, strategically, for gay rights advocates to try to get a favorable state supreme court ruling before the vote and force voters to explicitly rescind existing rights--which just enough Californians, sadly, were willing to do this year. (See Dale Carpenter for more on this point, and Eugene Volokh for what's likely to happen next.)

--Josh Patashnik

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