Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality? (Part 2)

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Daniel Winik & Jeremy Kessler

Continuing last week's Point-Counterpoint, begun by Daniel Winik...
Counterpoint: Jeremy Kessler
I thank Daniel for getting the conversation rolling with several pragmatic reasons for why we should fight for same-sex marriage in the legislatures rather than the courts. Although I'm sympathetic to many of Daniel's points, I'm not convinced by his argument as a whole. Even if one were to argue for a "mixed" legislative-judicial strategy, it's hard to underestimate the importance of the courts to the overall marriage equality project or to the progressive project more generally.

Daniel raises the specter of Roe in arguing that "constitutional progress is most effective and most lasting when it derives from popular consensus." It's true that bold judicial decisions risk solidifying resistance to constitutional causes. But for every Roe there may be a Brown v. Board of Education. Brown (347 U.S. 483, full text) caused a major backlash in the South and even liberal intellectuals assailed it for its supposedly shoddy reasoning. But today it's one of the pillars of our constitutional order. Judge-made law often meets popular resistance, but this resistance may itself prove an important catalyst for positive democratic change. Why? Adjudicative action can raise awareness of the issue, help citizens think through what their position really is, and so, ultimately, bring pressure to bear on local political actors. The language of rights is all-American and the courts are high-profile communities where that language can be spoken and broadcast to the general public.

The conversation-changing potential of adjudication isn't restricted to the federal courts. Just as "the process of legislative change, state by state" can affect the evolution of public attitudes toward marriage equality, the process of judicial change on the issue at the state level may also positively inform public attitudes. We are a law-abiding people. If state courts believe that marriage equality is the immanent law of their land, other states' courts and citizenries should know about this belief. The more marriage equality is the law the better, especially if you are by disposition an incrementalist. Gradually, the weather will change, and the right to marriage will become the daily forecast. Both court and legislative action can contribute to this atmospheric shift.

Beyond strategy, there's at least one other compelling reason for pursuing marriage equality in the courts. It relates to Robin West's argument for the legislative articulation of constitutional law. West argues that the Supreme Court's ongoing failure to treat the Equal Protection clause as a guarantee of positive action to eradicate inequality (as opposed to a negative check on legislative discrimination) is inherent in the nature of jurisprudence itself. From West's standpoint, judges are inclined to think equal protection demands, and can provide no more than, formally equal treatment of the subjects of legislation because such formally equal treatment is what judges themselves are expected to provide. Unlike judges, however, legislators are neither expected to mete out blind justice, nor to respect the value of continuity with precedent that drives judicial reluctance to license new rights. When judges demand that legislators act like judges, making no distinctions between aggrieved groups and rarely breaking with the status quo, they do violence to democratic governance.

West takes this sorry state of affairs to mean that we should concentrate our energies on developing a "legisprudence" of how legislatures can best articulate constitutional doctrine. But this cure doesn't necessarily treat the sickness West diagnoses. However progressive legislative action might be, regressively formalistic courts can still act as a stumbling block. It is therefore dangerous for progressives to accept such obstructionist courts as the natural order. We know that courts have, at times, engaged in declarations of positive rights and prescribed the proper remedies for their violation. Post-Brown desegregation cases like Green v. County School Board of New Kent County (391 U.S. 430, full text) and Swann v. Charlotte-Mecklenburg Board of Education (402 U.S. 1, full text) demanded that local governments take substantial, positive steps in order to achieve the true promise of equal protection. Brown's own notion of inherent inequality suggests that courts can create doctrine that demands legislatures go beyond their contemporary understanding of formal equality. This legacy of the details-oriented affirmation of positive rights is a noble one.

The development of a jurisprudence of positive rights should not be abandoned because of contemporary resistance to this jurisprudence. Judges should say what the law is. If progressives think the law demands a positive interpretation of equal protection -- in the case of gay marriage, the entitlement of legal marriage for all -- then they should try to persuade judges, and the larger community, of this legal fact. Exiting the courts because they tend to enforce readings of equal protection that allow actual discrimination can only perpetuate an undesirable, and incorrect, jurisprudence. Taking the fight to the courts serves not just the cause of same-sex marriage but the broader progressive agenda.