Monday, February 10, 2014

When Do Rights Activists Win By Losing And When Do They Lose By Losing?

By Mike Dorf

On Saturday, Professor Colb and I were on a panel at the 2014 Ivy League Vegan Conference.  Our panel was titled "Legal Implications of Human-Like Consciousness in Animals: Responses to Advances in Animal Neuroscience."  The organizers had in mind that we, as legal scholars interested in animal rights, would talk about how the law might be used to leverage certain findings, especially work by Gregory Berns of Emory, whose work subjecting (willing) dogs to fMRI scans shows that canine brains function quite similarly to our own.  Professor Berns was also on the panel.  In our respective presentations, Professor Colb and I each argued that while his work may well have scientific value, at present it has few immediate legal implications.  Here I'll briefly recap my main points.

I chiefly discussed the relationship between social attitudes and law.  I acknowledged that sometimes law can be used to drag along social attitudes.  So, for example, based on pathbreaking work by Catharine MacKinnon, judges construed Title VII's prohibition on sex discrimination in the workplace as also restricting workplace sexual harassment, before society had fully accepted that such harassment was in fact wrongful.  However, even in that example, there was a building consensus that gave MacKinnon's position a toehold among federal judges.

By contrast, I explained that sometimes claims for legal protection are so far out ahead of social attitudes that they are doomed to failure.  I used prominent examples of courts rejecting claims challenging race discrimination, sex discrimination, and sexual orientation discrimination well in advance of the attitudinal changes that would eventually make it possible for such claims to succeed.

I then explained that, notwithstanding a vocal and growing minority of people like us who support animal rights, our position is still sufficiently marginal that it is unrealistic to expect to win substantial legal protection for animals. I cited the litigation by PETA against SeaWorld as an example.  PETA argued that SeaWorld violated the Thirteenth Amendment by holding orcas in captivity.  As I noted when the case was filed in 2011, the legal argument was extraordinarily unlikely to succeed, and sure enough, last year the district court judge dismissed the case on the ground that the Thirteenth Amendment only protects humans.

That doesn't necessarily mean that the lawsuit was a bad idea. Activists sometimes bring lawsuits that they expect to lose, as a means of mobilizing public support for their position.  One need not agree with all of PETA's publicity stunts (and I disagree with a great many of them) to recognize that sometimes a publicity stunt is a good idea.  So it's possible that by bringing the case and losing, PETA aimed to shine a spotlight on SeaWorld's practices. If so, it certainly did not succeed in the same way that the film Blackfish has so far succeeded, but it's possible that the PETA lawsuit did do some good in raising consciousness.

Thus, I told the Ivy League vegans (Ivygans?) that I could imagine that, based on the work of Professor Berns, someone might bring a lawsuit or petition Congress to obtain very substantial rights for dogs and other non-humans, even though the almost certain outcome of such efforts would be failure. Nonetheless, such legal losses could perhaps be part of a larger mobilization strategy.  In that limited sense, I conceded, the work by Professor Berns could have "legal implications".

Whether losing amounts to winning by losing in any given context is difficult to predict.  It is conventional wisdom that the pro-life movement won by losing in Roe v. Wade, because the defeat served as a rallying cry and organizing tool for over the subsequent four-decades-plus.  I think there is undoubtedly some truth to that conventional view, although evaluating it would require one to be able to tell what would have happened had Roe come out the other way.

Moreover, the circumstances aren't really analogous, because Roe was a case initiated by the pro-choice movement and defended by the state.  Perhaps a better analogy would be a losing case that was initiated by activists seeking legal rights.  Conventional wisdom here could be a cautionary tale.  I suspect that losing in Bowers v. Hardwick in 1986 probably delayed the Supreme Court's eventual recognition of LGBT rights, and may partly account for the timidity of the trio of opinions that do give some such recognition: Romer v. Evans in 1996, Lawrence v. Texas in 2003, and United States v. Windsor in 2013 each counts as a victory for the LGBT rights movement, but each case is a doctrinal oddity, not expressly endorsing either sexual intimacy as a fundamental right or sexual orientation as a suspect classification.  I can't confidently say that the Court would have acted more boldly had Bowers v. Hardwick not been on the books, but that is certainly a possibility.  In short, the potential benefits of winning by losing must be balanced against the setbacks that accompany losing--including the possibility of making bad law that is then hard to disentrench.

Faced with these uncertainties and complexities, it may be tempting for activists to throw up their hands and simply make their case, with the chips falling where they fall.  I have some sympathy for that sort of view, but I think it's ultimately irresponsible.  Movements have limited resources and so there is always a question of where and how to deploy those resources among public education, lobbying for legislative action, litigation, and other uses.  And so, difficult as it is to predict how things will turn out, it does strike me that activists should give some thought to the many potential consequences of each approach.

6 comments:

John Q. Barrett said...

On Bowers v. Hardwick, I have the opposite intuition--I "think," admittedly in my gut and with no way to prove it, that the bringing and losing of the case, especially when the story of Justice Powell's vote switch became known, and the force of Justice Blackmun's dissenting opinion read by many, many thousands of law students, etc., got us to social progress, and to Romer, Lawrence and Windsor as next legal steps, much faster than would have happened in a world without that case.

Bill Walton said...
This comment has been removed by the author.
Bill Walton said...

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