Sunday, February 24, 2013

Gay Marriage, the Courts, and the Lessons of History

The cause of gay marriage has made remarkable breakthroughs recently.  There were the November victories at the polls: Maryland and Washington voters ratified legislation allowing same-sex marriage, Maine approved a ballot initiative allowing same-sex marriage, and Minnesota became the first state to reject a ballot initiative to constitutionally prohibit same-sex marriage.  There was President Obama’s embrace of the cause in his inaugural address, where, with his memorable reference to “Seneca Falls, and Selma, and Stonewall,” he framed gay rights as the necessary next step of the struggle for equality.  And now we are looking at a Supreme Court poised to consider the issue in a pair of cases scheduled for argument in March.

Of course these historic developments are still unfolding, and they are sure to occupy historians for generations to come.  While we wait to see how all this will play out and look forward to the historical assessments still to be written, what insights might legal historians have to offer about the struggle for gay rights thus far?  How has this struggle fit into existing models of law, the courts, and social change, which have generally relied upon the struggles for racial and gender equality as their touchstones?  Fortunately, Michael Klarman, one of the leading legal historians of our day, has written a fantastic new book that gives us much information and many provocative insights on the battle for marriage equality, the courts, and possible lessons of history.

The contributions of From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-SexMarriage (Oxford, 2012), can be broken down (with some simplification) into three categories: history, theory, and prediction.  In this post I will explore the first two; in my next post I will discuss Klarman’s thoughts about how the Supreme Court will likely deal with gay marriage.
Most of From the Closet to the Altar is comprised of a history of the gay rights movement, from the 1950s to today, with a focus on the courts and the struggle for marriage rights.  Klarman charts how the issue of gay marriage, which was far down the priority list for most gay activists in the early stages of the movement, eventually emerged as a viable issue—today even an inevitable one.  He gives particular attention to the effects of judicial interventions, and the counter-mobilization responses of opponents of gay rights.  Klarman’s engaging, fast-paced survey of the gay rights movement is filled with insights and information.  It is an invaluable resource for anyone looking for historical material to place current events into proper context.

A second contribution of the book is more theoretical.  Following the eight-chapter history of the struggle for gay rights, Klarman takes two chapters to present observations about the interplay between the courts and social change, using the history of gay rights and same-sex marriage as his primary case study.  The still unfolding history of the gay rights movement generally confirms for Klarman the conclusions of his previous historical scholarship.  The two overriding themes of his scholarship feature prominently in this new book: an assumption of judicial majoritarianism (courts rarely stray far from dominant public opinion); and an emphasis on what he describes in From the Closet to the Altar as the “unexpected, wide-ranging, and conflicting” consequences of court decisions.

The consequence of court rulings that is of central concern for Klarman is the phenomenon of political backlash.  He is well known for his argument that the most significant effect of Brown v. Board of Education was not in inspiring civil rights activists or in desegregating schools, but the newly energized white segregationist movement.  This white segregationist backlash created its own backlash, however, as their hardline tactics (fire hoses, police dogs, standing in the schoolhouse door) ultimately moved white northern opinion toward more aggressive civil rights policy.  Politically significant backlash effects, Klarman notes, can also be found in response to the Supreme Court’s rulings in Miranda v. Arizona (1966), Furman v. Georgia (1972), and Roe v. Wade (1973). 

The problem of political backlash to contentious court decisions is a central theme in From the Closet to the Altar.  Reading through the history of the gay rights movement, Klarman identifies a recurrent two-steps-forward, one-step-back dynamic.  Every victory for the movement seems to spur a resurgence of its opponents.  After the Hawaii supreme court ruled in Baehr v. Lewin (1993) that a law limiting marriage to heterosexual unions constituted sex discrimination, the Hawaii legislature promptly and overwhelmingly passed a law defining marriage as the union of a man and a woman, numerous states easily passed laws refusing to recognize gay marriages from other states, and eventually Congress weighed in with the Defense of Marriage Act in 1996.  After the Massachusetts supreme court found a right to same-sex marriage in its state constitution in the Goodridge decision (2003), conservatives latched onto the issue for political gain in the 2004 elections and a slew of states passed constitutional amendments limiting marriage to unions between a man and a woman.  The general trend, Klarman emphasizes, is clearly in the direction of increased recognition of gay rights, but the path has been anything but steady.

The history of the struggle for gay rights offers Klarman an opportunity to further explore, refine, and defend his backlash thesis (i.e., the argument that court decisions intended to advance a cause often spark political opposition that create new obstacles to that cause).  In particular, Klarman considers the tension between backlash and his general observation that courts rarely step outside the confines of mainstream public opinion.  Why is backlash such a recurrent phenomenon if the courts are basically majoritarian institutions?  To this important question, Klarman offers several responses.  He notes that while judges are responsive to the dominant norms of society, they are more insulated from public opinion than legislators, which means that judges may have more leeway to go against mainstream opinion and also that they are more likely to misread public opinion.  Judges are more susceptible to elitist skews (they tend to be more responsive to those issues—including gay rights—that poll well among the better educated and wealthier).  The law, in the form of judicial and constitutional norms, can, at times, increase the likelihood of politically unpopular rulings.  Furthermore, even if public opinion supports a ruling, opponents of that ruling may be more intensely committed than its supporters and more able to exploit the ruling for political gain—key ingredients for effective oppositional mobilization.  There is also the role of regional differences in support for an issue, which can concentrate and amplify both perceived support for an issue and oppositional efforts.  All of these factors help to explain how the courts can be basically majoritarian institutions while also, with some regularity, issue rulings that inspire political backlash.  In the struggle for gay marriage, all these factors are on display.

In my next post, I will turn to the provocative last chapter of From the Closet to the Altar, entitled “Looking to the Future: The Inevitability of Gay Marriage.”  Klarman here offers some predictions about what the Supreme Court is likely to do with a constitutional claim for marriage equality.