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.

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality? (Part 2)

Continuing last week's Point-Counterpoint, begun by Daniel Winik...
Counterpoint: Jeremy Kessler
I thank Daniel for getting the conversation rolling with several pragmatic reasons for why we should fight for same-sex marriage in the legislatures rather than the courts. Although I'm sympathetic to many of Daniel's points, I'm not convinced by his argument as a whole. Even if one were to argue for a "mixed" legislative-judicial strategy, it's hard to underestimate the importance of the courts to the overall marriage equality project or to the progressive project more generally.

Daniel raises the specter of Roe in arguing that "constitutional progress is most effective and most lasting when it derives from popular consensus." It's true that bold judicial decisions risk solidifying resistance to constitutional causes. But for every Roe there may be a Brown v. Board of Education. Brown (347 U.S. 483, full text) caused a major backlash in the South and even liberal intellectuals assailed it for its supposedly shoddy reasoning. But today it's one of the pillars of our constitutional order. Judge-made law often meets popular resistance, but this resistance may itself prove an important catalyst for positive democratic change. Why? Adjudicative action can raise awareness of the issue, help citizens think through what their position really is, and so, ultimately, bring pressure to bear on local political actors. The language of rights is all-American and the courts are high-profile communities where that language can be spoken and broadcast to the general public.

The conversation-changing potential of adjudication isn't restricted to the federal courts. Just as "the process of legislative change, state by state" can affect the evolution of public attitudes toward marriage equality, the process of judicial change on the issue at the state level may also positively inform public attitudes. We are a law-abiding people. If state courts believe that marriage equality is the immanent law of their land, other states' courts and citizenries should know about this belief. The more marriage equality is the law the better, especially if you are by disposition an incrementalist. Gradually, the weather will change, and the right to marriage will become the daily forecast. Both court and legislative action can contribute to this atmospheric shift.

Beyond strategy, there's at least one other compelling reason for pursuing marriage equality in the courts. It relates to Robin West's argument for the legislative articulation of constitutional law. West argues that the Supreme Court's ongoing failure to treat the Equal Protection clause as a guarantee of positive action to eradicate inequality (as opposed to a negative check on legislative discrimination) is inherent in the nature of jurisprudence itself. From West's standpoint, judges are inclined to think equal protection demands, and can provide no more than, formally equal treatment of the subjects of legislation because such formally equal treatment is what judges themselves are expected to provide. Unlike judges, however, legislators are neither expected to mete out blind justice, nor to respect the value of continuity with precedent that drives judicial reluctance to license new rights. When judges demand that legislators act like judges, making no distinctions between aggrieved groups and rarely breaking with the status quo, they do violence to democratic governance.

West takes this sorry state of affairs to mean that we should concentrate our energies on developing a "legisprudence" of how legislatures can best articulate constitutional doctrine. But this cure doesn't necessarily treat the sickness West diagnoses. However progressive legislative action might be, regressively formalistic courts can still act as a stumbling block. It is therefore dangerous for progressives to accept such obstructionist courts as the natural order. We know that courts have, at times, engaged in declarations of positive rights and prescribed the proper remedies for their violation. Post-Brown desegregation cases like Green v. County School Board of New Kent County (391 U.S. 430, full text) and Swann v. Charlotte-Mecklenburg Board of Education (402 U.S. 1, full text) demanded that local governments take substantial, positive steps in order to achieve the true promise of equal protection. Brown's own notion of inherent inequality suggests that courts can create doctrine that demands legislatures go beyond their contemporary understanding of formal equality. This legacy of the details-oriented affirmation of positive rights is a noble one.

The development of a jurisprudence of positive rights should not be abandoned because of contemporary resistance to this jurisprudence. Judges should say what the law is. If progressives think the law demands a positive interpretation of equal protection -- in the case of gay marriage, the entitlement of legal marriage for all -- then they should try to persuade judges, and the larger community, of this legal fact. Exiting the courts because they tend to enforce readings of equal protection that allow actual discrimination can only perpetuate an undesirable, and incorrect, jurisprudence. Taking the fight to the courts serves not just the cause of same-sex marriage but the broader progressive agenda.

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