Same-Sex Marriage, Abortion Rights, and Too-Much-Too-Soon Litigation

by Neil H. Buchanan

Over the weekend, I attended the annual meeting of the Association of American Law Schools (AALS), where my GW Law colleague Joan Schaffner chaired the Section on Animal Law's panel, "Animal Rights: From Why to How."  Among the six panelists were Dorf on Law's own Sherry Colb and Michael Dorf.  It was an interesting and lively session, in large part focused on strategic questions of advancing the cause of animal rights in the legal, legislative, and public spheres.

Professor Dorf began his remarks by commenting on the question of timing.  Noting that people involved in the gay civil rights movement had spent years obsessing over the question of when it would be wise (or even safe) to bring a high-impact case challenging prohibitions on gay marriage, he concluded that such strategizing is often pointless, because the courts are (relatively) open to the public at large, which means that the best-laid small-c conservative strategies can be ignored by people who are not willing to wait to seek justice in their own cases.  Worries among animal rights advocates about "getting the timing wrong" are, therefore, not necessarily illegitimate or foolish, but they might amount to little more than trying to control the weather or the tides.

One of the underlying issues to which Professor Dorf alluded in his remarks is the concern that an ill-timed lawsuit might "set the movement back" in a way that should be avoided (again, acknowledging that it is probably not possible to exercise that level of control over the process).  I have some thoughts about how these considerations might play out specifically in the animal rights context, but I will save those comments for my next "veganniversary" post this summer.  (Some Dorf on Law readers might recall that, in my 2015 veganniversary post, I announced that I would no longer write veganniversary posts.  That announcement was, apparently, not based on good reporting.  I uncritically related comments from an unreliable source.)

Here, I want to discuss the general question of poorly timed litigation.  As Professor Dorf noted in his comments in New York, many of his colleagues who have worked on gay rights litigation over the years were almost panic-stricken at the idea that someone, somewhere would do serious damage to gay rights by trying to move too far, too soon.  As far as I can recall, the consensus among these well-meaning people was that, perhaps in a generation or two, the American public would be ready to move toward marriage equality.  Doing anything before that risked serious, avoidable damage.

We all know what happened next.  Ted Olson and David Boies, who had the advantage of being among the highest-profile Supreme Court litigators of their generation (having represented the antagonists in Bush v. Gore in 2000), were not especially tied into the network of civil rights attorneys who were obsessed with getting the timing right.  Although their supposedly premature work on what became Hollingsworth v. Perry did not lead to a full victory, the Supreme Court did allow same-sex marriage to resume in California, and two years later, the Court finished the task for the rest of the country in Obergefell v. Hodges.  Notwithstanding some widely mocked resistance in one county in Kentucky and in the Alabama Supreme Court, there is no reason to suspect that this victory will be anything but complete and lasting.

So, not only did Olson and Boies not mess up the grand litigating strategy that was designed to get us to marriage equality in 2040, or maybe 2065, but it is arguable that they helped to speed things up.  If there is a general rule that heedlessly-rapid litigation is going to cause huge setbacks, same-sex marriage would seem to be a rather dramatic exception to that rule.

As I thought about the path to Obergefell, I tried to think of other examples of backlash-causing litigation.  Because I not only write for Dorf on Law but read it as well, I recalled Professor Dorf's critical assessment of the idea that Roe v. Wade was a cautionary tale for liberals.  In a post in June 2013, anticipating the Court's decisions in Windsor and Perry, Professor Dorf noted that Justice Ginsburg has frequently made public statements that suggested her discomfort with moving "too far too fast."

Earlier that year, Professor Dorf had directly (and persuasively) argued in a Verdict column that Justice Ginsburg's criticism is simply wrong, even though her motives were admirable.  His final argument in that column was that, if Roe had been unwisely written in a way that did not allow legislatures to engage in a "dialogue" about how best to regulate abortion, 1992's Casey decision reopened that dialogue.  The result?  Further restrictions on abortion, not liberalization.  If anything, the landscape has become even more hostile to abortion rights in state legislatures in the three years since Professor Dorf wrote that column.

What can we take away from these examples?  In the same-sex marriage context, the people who said that moving too far, too fast would result in disaster were simply wrong.  We moved much farther, much faster than anyone thought possible, because someone was willing to try.  In the context of abortion rights, there have been a lot of setbacks over the years, but (as Professor Dorf also noted in his Verdict column) that retrogression was already in motion before Roe.  Arguing that "Roe created the anti-abortion movement," or anything along those lines, ignores history.

Even so, one cannot help but think that there must be some examples of courtroom victories that led to larger defeats.  The logic seems unassailable: The public at large is not especially committed to the status quo and might even have noticed that change would be a good idea, but they are currently only willing to take one step forward rather than going all the way to the final goal.  Angered at being pushed, however, they take two steps back.

But even if that were true, what kind of damage are we talking about?  Is it a matter of actually moving backward from the starting point, or is it a more speculative question of slowing the progress that would otherwise have been made over time?  Some people in the gay rights community were worried that they might actually lose ground on other issues (which were presumably less emotionally and religiously freighted, such as workplace protections).  That, too, apparently is not happening.  The Ginsburg version of Roe suggests the latter story, but we can always describe a counterfactual history that would have led to a better place than we currently reside, That, however, is far too easy, and as Professor Dorf has argued, it misreads history.

In any case, if the supposed voices of reason want to continue to tell other people to be less insistent on asserting important rights, they are going to need a new cautionary example of "that time when overly eager people made matters worse by ignoring the voices of reason."  What were supposed to be the best two examples, after all, have turned out to support the contrary conclusion.