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Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality? (Part 3)

Responding to Jeremy Kessler's Counterpoint
 
Point: Daniel Winik
 
Thanks, Jeremy, for a well-reasoned counterpoint. We seem to agree on many fronts—and in particular on the wisdom of campaigning for marriage equality state by state, rather than aiming to achieve it nationally in one fell swoop. In that vein, I think both of us would endorse Bill Eskridge and Darren Spedale’s view that now is not the time for a federal Equal Protection challenge to Proposition 8.

Jeremy addressed mainly the legislative element of incrementalism, rather than the federalist element, so I’ll focus my response on that contested ground.

Let me begin with a clarification: I do think courts are relevant to the project of marriage equality. Few of this country’s civil rights victories have come without judicial action, and the progress so far toward marriage equality has been no exception. I also agree that progressives should not give up on “a jurisprudence of positive rights” (even if Jeremy’s invocations of Swann and Green seem a bit too hopeful in the wake of Parents Involved [full text]). My point is simply that progressives should favor a legislative approach where such a strategy is feasible.

I’ll anticipate a question from Jeremy: when exactly might the judicial recourse be appropriate? Progressives can take to the courts, I suggest, when a) they’ve tried and failed to gain traction in the legislature, and b) a judicial solution would not radically outpace the progress of public opinion. These conditions are likeliest to prevail where legislative support for marriage equality has for whatever reason lagged behind popular support. Rhode Island—whose legislature has so far ignored sixty percent of voters — appears to be the best candidate for a judicial approach today.

Recourse to the courts should be rare, because it carries strategic risks much graver than Jeremy has acknowledged. While I agree with him that “[j]udge-made law often meets popular resistance,” I don’t agree that “this resistance may itself prove an important catalyst for positive democratic change.” History has proven the opposite.

The reason is that controversial decisions do not energize both sides equally. As Jack Balkin has observed, “success by social movements in reshaping constitutional doctrine can lead ironically to political demobilization” among the movement’s supporters, even as it provokes “powerful counter-mobilizations” among the movement’s opponents. Balkin notes “that Brown may have unwittingly demobilized the nascent civil rights movement for a short time,” while Roe “put the abortion rights movement continually on the defensive and required it to respond to counter-mobilizations by religious and social conservative groups.” Similar forces may have been responsible for the passage last fall of California’s Proposition 8, six months after the state’s Supreme Court had legalized same-sex marriage, as a poorly organized campaign for equal marriage rights failed to defeat the proposition’s well-financed and highly-motivated supporters.

More broadly, I think the analogy to Brown is inapposite. Yes, Brown — like Roe — sparked controversy. Yes, it pushed beyond what anyone would call a clear national consensus against segregation. Unlike Roe, however, it did not curtail a nascent democratic process. The South was hardly on the cusp of desegregating its schools when Brown came down, as the case’s tortured aftermath made clear. The current state of the movement toward marriage equality is far closer to the state of the abortion rights movement at the time of Roe, when — as Balkin writes — “many states were beginning to consider reforming their abortion statutes” but few had yet done so. This is the sort of democratic trend that progressives prod at their own peril.

Public support for marriage equality is moving — inexorably, it seems — toward majority status. There may come a day when that trend founders and progressives must reconsider their options. But we should be wary of hastening such a reversal by telling voters that their views don’t matter. The judiciary may be the ultimate guarantor of constitutional rights, but for now, progressives can best secure marriage equality by taking their fight to the ballot box and keeping it out of the courthouse.
 

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