Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality?

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Daniel Winik & Jeremy Kessler

Over the next few days, Daniel Winik and Jeremy Kessler will use this space to delve into one of the most pressing debates within contemporary constitutionalism: whether progressive advocates for marriage equality should focus their energies on legislatures or the courts. Consider it a lawyerly debate, with each writer arguing wholeheartedly for the merits of his client — Dan for an “incremental,” legislatively-focused strategy, Jeremy for a court-centered approach — rather than either trying to give a completely “rounded” view on his own. Like many questions, the answer probably rests somewhere in the balance.

Point: Daniel Winik

I’ll open with an argument for incrementalism, an argument shaped in large part by several pieces from The Constitution in 2020, especially Judith Resnik’s discussion of progressive federalism (Chapter 24, PDF) and Robin West’s analysis of “legisprudence” (Chapter 8, PDF). As the essays by Resnik and West suggest, any effective progressive agenda will have to move beyond single-minded reliance on the federal courts as guarantors of rights. This is particularly true, as I see it, for marriage equality: progressives should continue to favor a state-by-state approach to achieving marriage equality, and where possible, they should make their case in the legislatures rather than the courts. Both of these elements — federalism and legislation — are central to an incremental approach. (For similar thinking, see Aaron Zelinsky’s insightful posts here and here.)

Without a doubt, incrementalism makes concessions to the federal bench’s conservative tilt and to the ongoing debate — even among progressives — as to whether the Federal Constitution encompasses marriage equality. That said, my argument is not mainly a tactical one. Even if the Supreme Court were to uphold an Equal Protection challenge, that outcome might not be best for progressives in the long run. Let me suggest three reasons why.

First, constitutional progress is most effective and most lasting when it arises from popular consensus. Jack Balkin and Sandy Levinson have argued that the Supreme Court’s constitutional innovations tend to track the mainstream of political thought, insofar as constitutional change occurs through “partisan entrenchment.” On the rare occasions when the Court has deviated from mainstream trends — Roe v. Wade, 410 U.S. 113 (1973), being the prime example — its pronouncements have been slower to gain acceptance. Justice Ginsburg, among the pioneers of litigation for women’s rights, has herself suggested that the Roe Court “bit off more than it could chew,” upsetting a legislative “state of flux.” Had Roe come five or ten years later, after legislative progress had been made, the controversy surrounding it would likely not have endured for decades.

If present trends hold, advocates of marriage equality won’t have to wait long for their popular consensus. Statistical guru Nate Silver’s models suggest that “by 2012, almost half of the 50 states [will have] voted against a marriage ban,” and “[b]y 2016, only a handful of states in the Deep South would vote to ban gay marriage.” The recent wave of legislative progress toward marriage equality hasn’t sparked anything close to the backlash that followed Goodridge v. Dept. of Public Health, 798 N.E.2d 941, the 2003 decision that legalized same-sex marriage in Massachusetts. In fact, the most recent adoptions of marriage equality statutes have seemed almost routine.

Hence a second reason to favor a state-by-state approach: it provides models to counter public fear-mongering. In other words, federalism isn’t just useful to progressives as a vehicle for legal experimentation; it’s also a sound vehicle for social experimentation. To the extent that Massachusetts, Connecticut, Iowa, New Hampshire, Maine, and Vermont survive their transitions to marriage equality with their social fabric intact (and we’re not seeing any reason to ring the alarm), it will become increasingly difficult for trumped-up fears of moral collapse to deter further progress.

A third reason to favor an incremental approach is that the political process of legislating change, state by state, is itself a catalyst for the evolution of public attitudes toward marriage equality. In West’s model of the legislated constitution, the “conscientious, idealized legislator” looks to the Equal Protection Clause as a dictate “to do her moral, political, and constitutional duty by the citizenry.” That process of defining equality, and understanding its mandate, is central to a robust democracy. As Resnik argues, “Jurisdictions do not make rights, but people do . . . . [and] only when many actors, at national and local levels, in and outside formal legal structures, fully embrace propositions like racial and gender equality do such understandings become constitutive . . . .” Incrementalism, then, represents a democratic embrace of the constitutional mandate for equality—not a retreat from it.