Winning Through Losing: Life After Perry

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Douglas NeJaime

For the Constitution in 2020 conference on The Future of Equality.

Popular accounts and media commentary on the federal suits challenging the Defense of Marriage Act (DOMA) and California’s Proposition 8 focus largely on the inevitable march toward marriage equality.Implicit in such accounts is a claim about the impact of favorable court decisions on the LGBT rights agenda.After a district court victory in the Massachusetts DOMA case and the more recent announcement by Attorney General Holder that DOMA is unconstitutional under an appropriately heightened standard, the toppling of the federal ban seems imminent.After the district court’s decisive blow to Prop 8 in the Perry v. Schwarzenegger litigation and a Ninth Circuit oral argument before a generally receptive panel, commentators have focused on the impact of positive judicial intervention on same-sex couples in California

Judicial defeat, however, is a very real possibility.Indeed, that LGBT rights advocates discouraged the federal Prop 8 challenge suggests that a federal litigation campaign for marriage equality is a high-risk proposition.The built-in assumption is that a Supreme Court loss would be crushing for the movement.But perhaps the aftermath of a litigation loss is not all doom and gloom.Perhaps a loss might instead raise consciousness among lesbians and gay men, produce a sense of outrage, and compel movement members to press more urgently for change from elected officials and the public.Perhaps a loss would frame the issue in a way that aids fundraising efforts, brings more sympathetic elites on board, moves the issue to the top of some legislative agendas, and leads to complacency in the Christian Right countermovement.

 

The history of the LGBT rights movement sheds considerable light on the productive deployment of litigation loss.After Bowers v. Hardwick, in which the Supreme Court upheld Georgia’s anti-sodomy law against constitutional attack, LGBT rights advocates regrouped.They used the litigation loss to inspire outrage and strengthen resolve among constituents.The Bowers defeat increased grassroots mobilization, fundraising, and organizational founding, all of which proved vital to a stronger movement.Advocates also reworked their strategy to focus on state-based venues.Between the Bowers and Lawrence v. Texas decisions, at least twenty-one state advocacy organizations formed.Some achieved legislative victories, convincing state lawmakers to repeal sodomy prohibitions.Meanwhile, advocates urged state courts to use state constitutional law to provide protections for lesbians and gay men.Of the eleven states that decriminalized sodomy after Bowers, eight did so through the courts.Not only did state court activism result in on-the-ground victories, but it also laid the groundwork for Lawrence, in which the U.S. Supreme Court overruled Bowers and held anti-sodomy statutes unconstitutional.

But what does the post-Bowers experience tell us about the role of litigation in social change?The scholarly debate over whether – and if so, how – court-centered strategies bring about reform occurs largely on the terrain of positive judicial intervention.Scholars who argue that litigation is an ineffective vehicle for social reform point to several constraints that courts (and strategies reliant on courts) face.Court victories may fail to produce the promised change and may divert resources from more promising tactics.The competing and more optimistic account recognizes courts’ limited ability to directly produce reform but redeems litigation by focusing on its productive indirect impact.Court victories may lend legitimacy to a cause, generate elite support, mobilize constituents, and provide much-needed publicity.The mere act of litigating offers the possibility of judicial validation in a way that may inspire movement members, pressure adversaries, and increase a movement’s bargaining power.

But little attention is paid to litigation loss, with both camps generally assuming loss to be a decidedly negative and demobilizing event.My intervention, which focuses on how advocates themselves manage loss and reconfigure it for productive purposes, offers a more complicated and optimistic account of litigation loss.Crucially, it does so by drawing from both the optimistic and pessimistic accounts of litigation.A range of social movement tactics, aimed at a variety of audiences, may draw strength from litigation loss precisely because such loss demonstrates the limitations of court-centered change.In response to movement setbacks in one venue, advocates may look to more favorable venues and to different levels of government, and they may use the loss in court to frame appeals in these other venues.By arguing that a movement may actually win through losing, this account runs counter to most scholarly treatment of the role of litigation in bringing about reform.

My argument suggests that if the Supreme Court actually decides the merits of the Perry case and rules against the same-sex couples, movement advocates would use the loss for some productive purposes.They would draw on the decision to mobilize constituents and raise funds, and they would frame the decision in a way that places the issue of marriage equality squarely in front of state-level decision-makers and the public.Of course, how successful their efforts would be is an open question.

Future work must focus on the conditions under which litigation loss may aid a social movement.A loss in Perry might facilitate this important work.It would allow us to see how institutional constraints affect the ability to use loss productively.State constitutional amendments present obstacles that did not exist in the context of Bowers; rather, after Bowers, state court litigation and legislation continued to represent viable alternatives.With voter-approved constitutional amendments prohibiting recognition of marriage for same-sex couples, in the aftermath of a Perry loss advocates would have to convince the public to change the law through the initiative process, a mechanism that historically has been unfriendly to LGBT issues.Losses in the federal suits challenging DOMA might provide useful counterexamples.The courts are deciding an issue of federal law, unaffected in any direct way by state constitutional amendments; a loss would merely return the question to Congress, where advocates would press for change.Therefore, analyzing the Perry and DOMA litigations side-by-side might suggest some of the conditions that affect the productive use of judicial defeat.

Of course, I am not hoping for LGBT losses to satisfy my own scholarly interests.Rather, I believe proper constitutional interpretation would extend equal protection and due process principles to lesbians and gay men.In an ideal world, then, Perry would prove successful and yet still produce new material with which to assess social movement advocates’ use of litigation loss.After all, Christian Right advocates – the official proponents of Prop 8 – are defending the constitutional amendment in court; how they respond to loss in Perry could provide an illuminating case study on how social movement activists manage judicial defeat.

Douglas NeJaime is Associate Professor of Law at Loyola Law School (Los Angeles). You can reach him by e-mail at Douglas.NeJaime at lls.edu