legisprudence

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

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.
 

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality?

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.
 

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