Thursday, May 15, 2008

Sticky Slopes

Blogging on California's ruling striking down bans on same-sex marriage, Eugene Volokh argues that the case proves true the fears by gay marriage opponents that the extension of legislative protections for gay couples acts as a "slippery slope" towards eventually legalizing the unions. The ultimate effect of enacting policy reforms to equalize the status of minority groups is, I suspect, complex. They can encourage further reforms via the bandwagon effect, increasing morale amongst activists, or showing that the sky isn't falling. But they also can smother political action by convincing the majority that they've "addressed the problem" and that further demands are pushiness or requests for "special rights." But Volokh's argument is that, as a a legal matter, these policies often end up appearing in later court opinions which push us to the bottom of the slope. He notes that in both California and Massachusetts, the high courts used these policies as evidence of liberalizing attitudes with regards to gay couples -- crucial components to their decision.

I don't disagree with Professor Volokh's documentation of this phenomenon per se. But oddly enough, it seems to cut both ways. When Maryland's high court upheld our state's prohibition of gay marriage, it also relied on the increasing legislative protection for gay couples -- but to the opposite effect. It claimed that these policies proved that homosexuals did not need additional protections by the courts -- that they were now fully capable of participating equally in the democratic arena (Conaway v. Deane, 401 Md. 219, 286-90 (Md. Ct. App. 2007)). The enactment of policy protections for gay couples, in this case, served as a barrier to further reform. It made the slope "stickier." Justice Scalia has made similar (albeit unsuccessful) arguments in his own dissents in gay rights cases, using the legislative accomplishments of the gay rights lobby to undermine the case for legal intervention.

The problem seems to be adequately encapsulated by Jack Balkin in his wonderful article, "What Brown Teaches us about Constitutional Theory":
In general, courts will protect minorities only after minorities have shown a fair degree of clout in the political process. If they are truly politically powerless, courts may not even recognize their grievances; and if they have just enough influence to get on the political radar screen, courts will usually dismiss their claims with a wave of the hand. Conversely, as a reform movement for minority rights gains prominence through political protest and legislative lobbying, courts will increasingly pay attention to minority rights and take their claims more seriously." [Jack Balkin, What Brown Teaches us about Constitutional Theory, 90 Va. L. Rev. 1531, 1552 (2004)]

As Massachusetts and California appear to demonstrate, some demonstration of political power -- showing that attitudes towards homosexuals have "liberalized", in this case -- appears to be necessary in order to "grease the slope" towards gay marriage. But, as Maryland demonstrates, this is a move fraught with peril: courts can just as easily use legislative gains as an excuse to hamper or delay pleas for judicial reform -- to make the slope "stickier."

There is irony to this, of course: disempowered groups shouldn't have to demonstrate political power in order to see their rights vindicated (though, it should be said, this is precisely what Critical Legal Theorists predict we should see in such cases). If limiting marriage to heterosexual couples is a violation of gay rights, it is just as much so when they are a totally marginalized class as it is when they are only somewhat reviled. But if we are going to demand political clout as a precondition for rights, it's perverse to turn around and use their new-found (limited) influence in legislatures as an excuse to deny them those same rights. Once again, either the marriage equality is a right or it isn't. If it is, then the fact that they can't secure it legislatively is proof that -- regardless of how successful they are on other priorities -- they hold insufficient political power to vindicate all of their rights in that arena. If it isn't, then courts should say so and explain why.

But what we're seeing right now is absurd. At best, it appears that there is a very narrow "band" of relative political inclusion upon which minority groups can launch claims for judicial protection: too little inclusion and the courts won't pay attention, too much and they'll claim their intervention is unnecessary. At worse, it appears that the rules of the game change so as to permanently preclude meaningful judicial protection for minority groups -- any amount of political power (lots, some, none) can be used as a reason to reject their claims.

Ultimately, as in most cases where the facts lead to indeterminate legal outcomes, my suspicion is that the amount of power possessed by a given minority group will likely be interpreted in a way that is most amenable to judicial policy preferences. Judges who want to increase protections of gays and lesbians will use their increased influence as proof that discrimination against them is archaic, while judges who oppose such reform will use that same evidence as an argument against viewing gays and lesbians as marginalized at all.


schiller1979 said...

There's an old saying: "The Supreme Court follows the election returns." The judiciary is, of course, independent of the political branches, but for various reasons they usually try not to get too far out of step with the politicians. That might help explain the phenomenon you describe of groups needing to show political power before the courts will protect them.

It seems to me, though, that it would be difficult to substantiate the notion that African Americans had demonstrated significant political power prior to Brown. Adam Clayton Powell was in Congress and that was about it.

On the other hand, LGBT people had demonstrated political power prior to Romer, Lawrence and the state marriage cases.

PG said...

Prior to Brown, African Americans had had military units desegregated (executive order, 1948), established a powerful union (Brotherhood of Sleeping Car Porters), and in 18 states statutorily were allowed to marry whites (and in California and some other states, anti-miscegenation statutes were struck down by courts).

Prior to the 1996 Romer decision, gay people could not serve openly in the military (and still can't) and had little recognition of their same-sex relationships; in 1996, Congress passed a law that said the full faith & credit clause didn't apply to same-sex marriages and that same-sex relationships would not be recognized by the federal government. Like African Americans in 1954, LGBT people in 1996 had no federal protection against discrimination in employment or housing.

LGBT folks have a massive economic advantage over African Americans, because the majority of the former benefit from being born into families not burdened by discrimination. (That is, the majority are born into straight white families.) They also can "pass" as straight more easily than blacks can pass as white.

However, integration with the majority has its own problems; Powell could be elected because there was a sufficient concentration of blacks in Harlem that they could elect one of their own even if every non-black in the district voted against him. In contrast, I don't know of a Congressional district in America that is majority gay and could elect a gay politician without straight support.

As for the substance of David's post, I think he is eliding the specific problem posed by the California decision, which is that if the legislature makes domestic partnerships sufficiently marriage-like, the state constitution (according to the state supreme court) will require them to be called marriages -- despite a voter initiative that said they were not supposed to be called marriages. Or to draw on an example from an unrelated area of law, the states that legislatively prohibited on executing people who committed their crimes while minors became evidence of a national consensus that meant the 8th Amendment also disallowed such executions. Roper said this even though the states made their decisions as a policy matter rather than on the basis of constitutional rights.

However, another example of how liberalized attitudes worked against same-sex marriage would be the Hernandez v. Robles decision (NY Court of Appeals), in which New York's anti-discrimination provisions were taken as proof that the restriction of marriage to opposite-sex couples couldn't possibly be founded in any animus toward homosexuals.

schiller1979 said...

As soon as I published that comment, I began to rethink the comparison between African American and LGBT political power. I was thinking of state and local anti-discrimination laws and legislative repeal of sodomny laws. Also the number of openly lesbian and gay public officials (although some are only open because they were outed.)

I suppose that could be considered roughly comparable to where African Americans were in 1954. LGBT rights at the federal level have received very little support from congresses and administrations of both parties.

I didn't intend to question anything that David had written about the manner in which the courts take political considerations into account. I was reacting to his statement that "disempowered groups shouldn't have to demonstrate political power in order to see their rights vindicated". I was discussing why they take politics into account, not how.

David Schraub said...

I agree that for all practical purposes minority groups need to show political power -- I just that's a little twisted and cuts against the grain of how we envision our constitution working.

Some scholars have gone further on the question of why a White Supreme Court voted for Brown, and argued that the reason was that it was in White Americans interest to do so because of the Cold War, not because of any particular moral insight (see Mary Dudziak, Cold War Civil Rights (Princeton UP 2000). Derrick Bell in his famous "Interest-Convergence" article argues that such situations (Black rights being in the interests of elite Whites) is the only time when civil rights progressive is ever actually made.