Monday, May 19, 2014

The Story Behind the Story Behind the Case--And a Chance to Meet the Prop 8 Plaintiffs

by Michael Dorf

As the editor of Constitutional Law Stories, one of the books in the Foundation Press series that tell the stories behind the leading cases of various legal fields, I know that recitations of the facts in appellate opinions usually omit important social, economic, political, and personal background information. They do so for a reason of course: The law is meant to be impartial, doing equal justice to the rich and poor, the famous and the anonymous, the wicked and the good; and so, concentrating too much on the actual facts of a case can get in the way of deciding that case according to the law; facts are thus abstracted and stylized. The Law Stories project aims to restore the missing context that the law's "abstractification" has removed.

One reason for that restoration of the missing background is knowledge for its own sake. It's interesting to know what really happened before a case reached the Supreme Court, or after it left. Law Stories is non-instrumentally valuable in the way that history more generally is non-instrumentally valuable.

The background stories of the people in the cases can also be used to make some larger point. For example, Norma McCorvey's particular story was mostly irrelevant in Roe v. Wade, and to the extent that it was reported, it was reported inaccurately. Later, when McCorvey (who was Jane Roe) changed her views, she became a particularly effective spokesperson for the pro-life movement. In principle, it shouldn't have mattered that McCorvey changed her views about abortion. Undoubtedly lots of people change their views each year, in either direction. Nonetheless, McCorvey was a powerful symbol for the pro-life movement, and has become still more powerful in recent years as that movement has promoted the idea of "abortion regret syndrome." If even Jane Roe herself now regrets having had an abortion, the argument goes, then abortion is not a valuable right for women, but a victimization of women.  (Just to be clear, I'm not endorsing that view; I'm merely noting how McCorvey's own story provides some support for it.)

Another, somewhat more complex, example is the story behind Lawrence v. Texas Speaking for the Court, Justice Kennedy wrote there: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring." That's a fine sentiment, but it's certainly false. A one-night stand or a visit to a prostitute is an "overt expression" of "sexuality" but it's not an element of any "more enduring" "personal bond." And Dale Carpenter's book Flagrant Conduct shows that the protagonists of Lawrence were hardly a gay version of Ozzie and Harriet. So why did Justice Kennedy say what he did?

Partly we have here a simple gilding of the lily. A robust case can be made for sexual freedom outside of committed relationships. After all, a state that enforces sexual morality is likely to have totalitarian features. But an even more robust case can be made for sexual freedom inside of committed relationhsips. And so by portraying the encounter at the heart of Lawrence as "but one element in a personal bond that is more enduring", Justice Kennedy broadened the audience for his argument.

But in doing so, he reinforced a transformation of the LGBT rights movement. The modern gay liberation movement had its roots in the sexual revolution--a revolt against traditional sexual morality. A number of developments led the movement away from those roots. Among these, the HIV/AIDS epidemic of the 1980s was important in at least two ways: First, it made anonymous, promiscuous sex dangerous and thus less attractive to gay and straight people alike; second, as a population of mostly gay men faced decline and death from HIV/AIDS, they--and their committed partners--became the new, sympathetic, face of the gay rights movement: a movement that sought rights to next-of-kin status for hospital visits, insurance policies, and inheritance. What had begun in large part as a movement for a right to opt out of bourgeois sexuality had mostly become a movement for the right to share in it.

Many people in the LGBT rights movement, and especially in the academy, remain wary of what they regard as the heteronormativity of the movement's focus on marriage equality. But in mainstream society, that focus has become almost single-minded. Even when movement actors look beyond marriage, they take up (or resume the fight for) other mainstream causes that emphasize how much LGBT persons are similar to everyone else--like the enactment of legislation to expand federal workplace antidiscrimination law to cover sexual orientation and gender identity.

That story--LGBT people are just like straight people--is not just a story, of couse. For although Lawrence may not have been about a gay Ozzie and Harriet, United States v. Windsor kind of was. Justice Kennedy did not need to gloss the facts to make a love story out of the lives of Thea Spyer and Edith Windsor. Nor would he have had a hard job had the Court decided the merits of the Prop 8 case, Hollingsworth v. Perry. If you don't believe me, watch the video of a discussion last month at Cornell Law School, moderated by me and featuring one of the two lead couples in the Perry case, Kris Perry and Sandy Stier. You will see what ideal plaintiffs they were.



The discussion shown above occurred shortly after the release of Jo Becker's controversial book, Forcing the Spring. The controversy over Becker's book mostly concerns the credit she gives to the team behind the Perry litigation and the credit she fails to give to others who paved the way (and in some cases actually won on the merits).  For the most biting critique, see Andrew Sullivan here, here, and here.  For what it's worth, I mostly agree with Sullivan and the other critics. In a new article in Law & Social Inquiry, political scientist Sid Tarrow and I discuss the much broader movement for SSM over the last several decades (more about that article next week); it would not have occurred to us to place the Perry litigation at the center of that story.

Having said that, I should hasten to add that the controversy over who deserves how much credit for the progress that has been made towards marriage equality in no way undermines the very compelling personal story of Kris and Sandy. But the controversy does have implications for how we think about law stories.

The story behind a case will typically be the story of individuals who, deliberately or not, come to stand in for a larger set of concerns--either accurately, as in Windsor and Perry, or somewhat fictionally, as in Lawrence.  Knowing the story behind the case will provide insight into how the lawyers and judges framed an abstract issue out of concrete circumstances.

But to understand the larger forces that shape the law, one needs to know more than the story of the particular litigants and lawyers. One needs to know the story behind the story behind the case. If one thinks, as I do, that in the long run, social and political movements and trends play a larger role in shaping the law than do three-part doctrinal tests or the fortuity of which case wins the race to the courthouse, then one wants to know about how those larger forces interact with the legal system. That's why the stories I collected in Constitutional Law Stories mostly aim to tell the latter sort of tale, using the stories of the particular litigants as illustrative or exemplary.