by Michael Dorf
Tomorrow I will be speaking on a plenary panel in Chicago at the American Sociological Association's annual meeting. The organizing theme for the conference is "Sexualities in the Social World" and my particular panel is titled "The Politics of Same-Sex Marriage: Public Opinion and the Courts." The other panelists are Greg Lewis of Georgia State, Brian Powell of Indiana, Katrina Kimport of UCSF, and panel organizer/moderator Paula England of NYU. As the lone lawyer in this group (and one of only a handful at the conference), it's fair to say that I was asked to give the "Courts" angle.
That's not to say I'm uninterested in the politics of or public opinion regarding same-sex marriage (SSM) or other subjects that intersect with law. Indeed, although I will spend most of my allotted 16 minutes (plus Q&A) discussing the legal road to and from Obergefell v. Hodges, I also plan to insert some theory about the relation between law and social movement actors. Here I'll briefly preview my theoretical remarks. Okay, here goes:
Even in the traditional formalist view, law is a product of social forces. People express preferences through electoral politics, and after some filtering, those preferences then get expressed through legislation. When social forces lead to changes in the electorate's preferences, a reasonably responsive democratic system translates those changes into changes in law. However, in the application of formal legal materials such as statutes and constitutional provisions, judges don't (or at least aren't supposed to) take account of changing social norms and practices. We have many metaphors for the role of the judge in a legal formalist world but the most prominent these days is the one that then-Judge Roberts offered as a nominee for the SCOTUS--an umpire just calling balls and strikes. To be sure, baseball fans know that umpires excercise considerable discretion in calling balls and strikes, with some employing wider or narrower strike zones, but everyone understood that Roberts meant to convey a fairly mechanical view of judging. In formalism, law and politics--including politics as the translation of social change--are separate.
Although formalism continues to have its champions, at least as a goal that judges should strive to achieve, since the advent of legal realism about a century ago, most people who are interested in social movements and the law recognize that social and poltical changes can translate into court results even without new legislation or constitutional amendments. For most legal theorists, however, social movements tend to be something of a black box. For example, Jack Balkin--whose book Living Originalism places social and political movements at the center of his attempted reconciliation of originalism and changes in constitutional understandings--provides virtually no fine-grained examples of how social movement actors influence courts. Other legal scholars attentive to the influence of social change on legal understandings do not provide much more--occasionally referring to judicial appointments. In any event, the basic picture is that there's a social movement and the courts take notice.
Some scholars expressly claim that the influence of social movements on law is a one-way street. Gerald Rosenberg's Hollow Hope is the leading example here. Although Rosenberg does not say much about the influence of social movements on law, he argues that courts do not bring about social change (at least absent help from the political branches). When Rosenberg spoke at Cornell earlier this year, he was gracious in acknowledging that SSM may yet prove to be a counter-example to his thesis, which is ultimately empirical. In any event, my goal here is not to argue with his thesis but simply to note that much writing about social change and law seems to take Rosenberg's view or its opposite as a tacit starting point. The question on which this branch of scholarship focuses is how (or whether) changes in law affect society, not how (or whether) changes in society affect law.
Yet, unless one is entirely persuaded by Rosenberg's thesis, one will recognize that the interaction between, on the one hand, courts and other legal actors, and, on the other hand, social movements, is dynamic. Social movements influence law and law influences social movements. Indeed, often law, or more precisely, a strategy for changing the law, is part of the social movement itself. Some of the best work by non-lawyers on legal campaigns shows how lawsuits, referenda, and lobbying can be part of a strategy of mobilization that builds a movement even when it fails in its immediate goal of attaining legal change.
To my mind, inter-disciplinary work by lawyers in combination with social scientists can make an important contribution by providing a more fine-grained picture of how this dynamic operates. My own modest contribution with respect to SSM--my 2014 study with Sid Tarrow--makes two points regarding the dynamic: First, in some circumstances (including the case of SSM), a counter-movement to a movement to change the status quo may actually place the movement's issue on the public policy agenda, thus leading the movement to champion a cause it might otherwise have neglected, at least for a time. And second, any truly fine-grained account of the relation between social movements and legal change must treat social movements themselves as consisting of movement organizations as well as grass-roots actors. Organization leaders who may be reluctant to seek a certain kind of legal change because of their evaluation of their limited likelihood of success will sometimes be pressured to act in a way that they regard as premature or rash.
Thus, socially conservative organizations first used the prospect of SSM as a wedge issue. Nearly all mainstream politicians took the bait and there matters stood for roughly the decade between the backlash against Baehr v. Lewin (the Hawaii case) and the recognition of a state constitutional right to SSM by the Massachusetts Supreme Judicial Court in Goodridge v. Dep't of Pub. Health in 2003. Meanwhile, at first the LBGTQ rights organizations responded timidly, fearful that aggressive advocacy for a right to SSM would spark a backlash. However, pressure from the grass roots--i.e., same-sex couples who wanted to marry--and the decentralized nature of litigation in the U.S., which enabled people to file lawsuits without the backing of the major organizations, eventually led the LGBTQ rights organizations to embrace and fight for SSM. Meanwhile, we haven't studied the extent to whcih opposition to SSM from the right was driven by grass-roots opposition or whether this was an organization-driven effort to mobilize social conservatives. As I shall be in a room full of people who study such matters, I'll ask whether anyone knows the answer. If no one does, I'll suggest that this would be a fruitful line of inquiry.