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Courts and social change, again


My friend Russell Arben Fox has come a long way in the last few years (see here to chart the progress), and I am delighted he’s now joining me in celebrating the fantastic news from the UK yesterday. While I have some sympathy for the democratic theory that motivates his argument in this post, I think the theory he expresses here has a lot of problems. This paragraph, in particular, isn’t at all clear about the proper role of judicial review in Foxland:

If I now believe that same-sex marriage should be recognized as a legally defensible and positive civic good, which should I care about those whose opinions would be found constitutionally lacking by a decision which I support? Would I have cared about the consequences of Brown v. Board of Education for racists, for example? Well, my answer to the latter is “no”–but my answer to the former is that I just to don’t believe that opponents of same-sex marriage are operating from the same kind of irrational animus which many of those who were scandalized by the end of segregation were. It’s quite easy to position oneself on the probably winning (and, again, I think right) side of history here, and say that the passage of time will prove that same-sex marriage opponents are ultimately cut from the same bigoted cloth, and I can’t deny that might, decades hence, turn out to be the case. But for now, as one who prefers the messy imbalances of democracy to the supposedly clear (but for all that usually arbitrary) impositions of the law, and for whom the past three years have mostly just provided confirmation of my many doubts about trusting in the judicial branch), as well as one who not too long ago was persuaded by a certain argument against same-sex marriages, I just can’t see in the supporters of Proposition 8 and the Defense of Marriage Act and the opponents of what the House of Commons just voted for as somehow so obviously out of line with our country’s evolving political ideas so as to deserve a judicial squashing.

There’s a mixed message about here about the appropriate standard for judicial intervention in rights protection. Russell suggests that Brown is acceptable while Varnum and its cousins are not (or at least less so) because of the degree of ‘irrational animus’ present in the opponents of desegregation compared to the opponents of marriage equality. (As an aside, I note that this changes the proper task for judges in a democracy–in addition to interpreting the proper bounds of equal rights, you charge them with the task of interpreting the degree of irrational animus amongst the opponents of a particular rights claim; if judges are not capable of addressing the former with sufficiently apolitical dispassion, what would motivate the belief they are capable of the latter task, which seems every bit as difficult and fraught with opportunities to import one’s politics?)  But at the end of the paragraph, the standard for judicial intervention is how “out of line” rights opponents are with “our country’s evolving political ideas.” I can’t recall if Russell has ever directly addressed Loving (he mentions it in passing later in the post in a way that would seem to suggest he’s a fan), and I’d be curious to see him do so. The standard he suggests at the start of this paragraph would seem to align him with the majority, as he’s established that racist public policies reveal and irrational animus. But by his second standard, Loving would seem to be highly illegitimate; it came at a much earlier moment (but clearly still midstream in that particular democratic deliberation) in the evolution of views on interracial marriage in this country than we are at presently with marriage equality for same sex couples.

Readers will not be surprised to learn that I am not entirely persuaded by Russell’s view that the irrational animus isn’t a significant part of the opposition to marriage equality today. I’ll concede here that holding the view that a certain version of gender complementarianism provides the best foundation for available for marriage is not, taken alone, sufficient evidence of irrational animus against gays and lesbians. However, the view that gender complementarianism is the ideal for marriage and therefore we should use the coercive power of the state to prevent some (same sex) marriages that do not conform to this ideal, but tolerate many other (opposite sex, but based on feminist/egalitarian principles) marriages that openly flaunt and reject this vision) is clearly evidence of an irrational animus; it’s singling out a tiny minority—one that’s already legally and socially vulnerable, in large part because a substantial majority of the very same people that oppose their marriage rights also oppose civil unions and inclusion in anti-discrimination statutes—for a highly selective effort to legally enforce a fundamentally, transparently unenforceable ideal of marriage. (Perhaps it’s sufficient to pass the Court’s rational basis test, but that’s the sort of reasoning Russell wants to move away from, with good reason). Furthermore, Russell’s argument that many states have been willing to enact civil union statutes that approximate marriage in legal form (as evidence against irrational animus among SSM’s opponents), applies to a small minority of same sex marriage’s legal opponents. In Washington State in 2009, 47% of the population voted to rescind the state’s civil union law; three years later 46% voted to rescind marriage rights for same sex couples. The pattern—where the votes and financial support for the campaign came from—were virtually identical. That a handful of moderate legislators have made this distinction does not, in fact, suggest that opponents of same sex marriage as a group do; voting patterns on civil unions and SSM reveal that the majority of them clearly do not.

Finally, Russell makes an argument with which I have some sympathy: he is concerned with the reduction of democratic debates to “judicial claims and counter-claims” and the distortion of our public discourse constitutes a democratic cost. I don’t exactly disagree, although this is probably a much more minor concern for me than it is for him. But: every form of institutional social chance carries democratic costs. Consider, in comparison, the costs of achieving SSM by plebiscite, which (arguably) surpasses legislatures as a democratic way of addressing this issue, particularly given the various countermajoritarian features of contemporary legislatures. What does *this* do to our public discourse? Opponents of SSM figured out a formula for winning elections in an environment in which a majority is at least sympathetic to equal rights for gays and lesbians (whether it’s marriage rights, civil unions or inclusion in anti-discrimination statutes): to suggest and imply that equality and recognition for gays and lesbians inevitably constitutes a significant threat to the well-being of children. This is a breathtakingly ugly bit of demagoguery, and it’s been cheerfully repeated and funded by the major organizations that oppose SSM (including Russell’s church), and has been depressingly effective (until, blessedly, 2012) in persuading those on the fence to side against rights for gay and lesbian couples. (That SSM opponents are so willing to pursue this line of reasoning, and are so susceptible to it is also, I think, evidence that irrational animus is playing a larger role than Russell admits). But this ugliness doesn’t mean I oppose efforts to legalize SSM by plebiscite! Any form of social change has costs, and the nature of the costs of judicial, legislative, and plebiscitary varies. But if we’re going to talk about the costs of one of these methods, we should do so comparatively, not in isolation.

Ultimately, I think Russell is conflating two moments of democratic theory. At the first moment, the question of proper institutional design for a democratic polity, I have a fair amount of sympathy for the Waldronian case against constitutional judicial review, although I would probably still reject it in some cases. I certainly agree with Russell that the UK offers a better model for democratic institutional structures than the US does, although largely for reasons other than the role of judicial review. But Russell consistently moves too easily from democratic theory at the moment of institutional design to democratic theory after the question of institutional design is (provisionally) settled. This is evident in this old post on school funding, where Russell argues (correctly, in my view) that disputes over the funding of public schools probably shouldn’t be settled by lawsuits as a general practice, and suggests (incorrectly) that citizens who use this avenue to protect public school funding in their community are in some sense failing to behave as proper democratic citizens, even though this is precisely the mechanism the State of Kansas has set up for them to demand greater funding for public schools in their community. My view is this: activists and citizens should feel free to be pragmatic and strategic in choosing which institutional route to social change to pursue, even if that form is less than ideal. (My reservations about plebiscitary democracy are, I think, at least as strong as Russell’s about judicial review, but as long as we’re stuck with it, as we surely are in many states, I don’t begrudge my allies or my opponents effort to use it). Democratic citizens are always going to operate in an environment of less than ideal institutional arrangements, and there’s no sense in pretending otherwise. But the case for the legitimacy of judicial strategies is particularly strong in the US, I think, since our political system (including our legislatures) is so effectively larded up with countermajoritarian choke points that frequently empower powerful minorities to hold up social change with substantial support in the realm of public opinion.

All this reveals, I suppose, that at the level of democratic theory I’m more of an agonist and less of a deliberativist than Russell. I suspect that, given my (less charitable) read on the quality of arguments against same sex marriage (and civil unions, and anti-discrimination statutes), combined with the observation that the most efficient path to change minds on this issue, and (I suspect) the main driver of social change on this issue, isn’t particularly good arguments about the scope of rights or the nature of marriage or anything else, but the condition of actually having gay and lesbian people in one’s life, as family members, friends, or community leaders. The best way to continue this positive social transformation, I suspect, is not to persuade the wary via democratic deliberation, but to achieve equal rights by whatever mechanism is most efficient, and live publicly and openly as equal citizens, and watch the irrational fears melt away. How we live is a part of democracy as much as what we say. Acquiring legal rights, regardless of the acquisition mechanism, facilitates gays and lesbians’ capacity to live as equal citizens, which, in the end, is likely to be far more persuasive than anything they could say.

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