Monday, February 02, 2015

Can the SCOTUS Bring About Social Change w/r/t SSM?

by Michael Dorf

If the weather cooperates, tomorrow, University of Chicago political scientist Gerald Rosenberg will be the guest speaker in a colloquium on law & social movements that my colleagues Aziz Rana and Sid Tarrow are running this semester. (A few years ago I co-taught a related colloquium with Sid, focusing on the Constitution & social movements, which led us to co-author this article on same-sex marriage.) Professor Rosenberg is best known for his book The Hollow Hope: Can Courts Bring About Social Change?. His answer to the question in the book's title is "mostly not." He argues that Brown v. Board was mostly a failure, and that what progress was made in dismantling Jim Crow was largely a product of politics--especially the 1964 Civil Rights Act and the mechanisms it created. He also largely rejects the "catalyst theory": the idea that while Brown and other court decisions themselves did not bring about much desegregation, they put the Supreme Court's moral authority behind the civil rights movement, and thus helped catalyze the political developments that were (somewhat) effective.

In preparation for Professor Rosenberg's visit, Professors Rana and Tarrow distributed to their students and made available to colleagues Rosenberg's 2005 article applying the thesis of The Hollow Hope to some then-recent examples, including same-sex marriage. Here is what Professor Rosenberg said in that article about the Massachusetts Supreme Judicial Court's 2003 ruling in Goodridge v. Dep't of Public Health (the first state high court decision to find a full right to SSM) and the Hawaii and Vermont precursors:
The result of these judicial victories has been nothing short of disastrous for the right to same-sex marriage.  ...What happened? The answer is simple. Same-sex marriage proponents had not built a successful movement that could persuade their fellow citizens to support their cause and pressure political leaders to change the law. Without such a movement behind them, winning these court cases sparked an enormous backlash. They confused a judicial pronouncement of rights with the attainment of those rights. The battle for same-sex marriage would have been better served if they had never brought litigation, or had lost their cases.
How different things look a decade later! Yes, there was an immediate backlash against Goodridge, as there had been a backlash against the Hawaii and Vermont rulings. But any account of the remarkable shift in American public opinion in favor of SSM over the last decade that counts litigation as an obstacle seems clearly false. In retrospect, Goodridge and the other cases played a catalytic role.

After SSM was legalized in Massachusetts, the right freaked out nationally but meanwhile, same-sex couples did have the right to marry in Massachusetts and then the rest of the country saw that people of the same sex marrying does not bring on an apocalypse. Moreover, the litigation campaign itself awakened the public to the fact that they really didn't have a good reason to oppose same-sex marriage. As Ronald Dworkin wrote, courts are a forum of principle, and when opponents of SSM had to articulate a principle to justify their opposition, they couldn't. The public took notice.

Professor Rosenberg can perhaps be forgiven for having failed to predict the last decade. Each of us can mistake a short-term setback for a permanent defeat and in 2005 perhaps it was reasonable to think that Goodridge and the larger litigation campaign had backfired disastrously. But if Rosenberg's pronouncements about the effects of the litigation look foolish only in hindsight, his claims about the LGBTQ rights movement lawyers were already unfair even a decade ago.

It is one thing to claim that there are limits to what courts can do without public support. I agree with Rosenberg that premature litigation can sometimes be counter-productive. I also agree that courts alone can accomplish little. If the expected June SCOTUS ruling in favor of SSM meets with massive resistance in Dixie or elsewhere, as seems possible, then it will take a determined national political effort to ensure that the rights recognized by the courts in principle are realized in practice.

But Rosenberg was already clearly wrong in 2005 when he claimed that LGBTQ leaders chose litigation over a political campaign. I have from time to time consulted with Lambda, the LGBTQ rights section of the ACLU, and other lawyers in the marriage equality and broader LGBTQ rights movement since at least the mid-1990s. Up until the last couple of years, they were EXTREMELY cautious about bringing litigation. It would not be an exaggeration to say that they obsessed about the possibility of either losing and making bad law that would get locked in or winning and inspiring backlash.

Indeed, it was precisely because of the movement lawyers' caution that the first high-profile federal constitutional challenge to a state law forbidding same-sex marriage--the anti-Prop 8 lawsuit that culminated in Hollingworth v. Perry--was brought by lawyers outside of the main LGBTQ organizations. Lawyers inside those organizations were very worried about the litigation when it was brought, only coming around to support it publicly when it became clear that the case would proceed with or without them.

To my mind, Professor Rosenberg makes two mistakes. First, he too easily moves from the (accurate) propostion that courts can't do everything to the (overstated) proposition that they can't do anything. (Or at least that's how Professor Rosenberg sometimes writes. In other places he's more cautious, expressing nuances that put his views more in line with those expressed by Professor Michael Klarman about civil rights and SSM.)

Second, Professor Rosenberg appears unfamiliar with how strategic modern legal rights organizations can be. Yes, there are some naifs out there who believe that justice can be fully achieved by winning a case. But they tend not to rise to leadership positions in what are intensely political organizations. Thus, even in 2012 and 2013--when marriage equality was exploding in the courts--Lambda spent almost half as much money on educational efforts as on litigation. And that does not count the PR benefits of the litigation as education spending, and Lambda is primarily about litigation. Meanwhile, other LGBTQ rights and marriage equality organizations have also pushed an educational and legislative program.

So that's the basis for some of the questions I expect to ask Professor Rosenberg during the colloquium and at a dinner following. It should be a lively day.