Many observers have criticized the approach of using litigation to achieve social change ever since a Hawaii court ruled in 1993 that the denial of marriage benefits to same-sex couples was unconstitutional—criticism that only accelerated after Massachusetts's landmark Goodridge decision in 2003 ruling that bans on same-sex marriage are unconstitutional. Much of this criticism takes the form of what I call the "countermobilization myth"—that is, the idea that victories won through the courts produce a unique amount of political backlash that make them counterproductive. The remarkable wave of success for LGBT rights on Election Day, combined with a steady increase in support for same-sex marriage, makes the countermobilization myth even more untenable. Michael Klarman's invaluable new book, From the Closet to the Altar, remains ambivalent about the use of litigation to advance same-sex marriage. But ultimately, it provides a powerful case that in the right circumstances, litigation can be an effective tool for social reform.
It should be noted that Klarman's skepticism of litigation is generally well founded. His masterly 2006 book From Jim Crow to Civil Rights established, at substantial length, that even landmark civil-rights opinions often have surprisingly little direct impact, and courts are often powerless in the face of determined opposition. The Court's famous reversal of show-trial convictions in the Scottsboro Boys case was ultimately unable to prevent several innocent young men from being jailed for decades, and Brown v. Board of Education produced virtually no desegregation in the Deep South until Congress passed the Civil Rights Act ten years later. If the Court gets too much credit for civil-rights advances, Klarman argues, it probably gets too much blame for systematic violations of civil rights: Plessy v. Ferguson was decided well after Jim Crow had already been established, and it's unlikely that the Supreme Court could have meaningfully reduced Southern segregation in 1896, even if it had wanted to.
Klarman's skepticism about the courts and social change may explain why there is a certain disjuncture in From the Closet to the Altar between the tone and the bottom-line conclusions. I would infer that Klarman set out to write a book more sympathetic to the countermobilization myth but appropriately changed his mind as the facts on the ground changed. The backlash to victories by LGBT-rights litigators is described with terms such as "fierce" and "formidable," although, as Klarman's account shows, in a majority of cases the statutes and initiatives that resulted from these backlashes didn't make the status quo worse, and some backlashes backfired—for example, the attempt to defeat Governor Howard Dean of Vermont and to unseat legislators in Massachusetts who opposed a constitutional amendment reversing Goodridge. Klarman devotes nearly two pages to the theory that Goodridge cost John Kerry the 2004 election by shifting Ohio to Bush, while the criticism of that theory is relegated to a footnote.
Still, Klarman's meticulously researched book brims with historical detail and provides data that allow readers to make their own judgments. Ultimately, his skeptical perspective makes his optimistic conclusions all the more powerful. Even when he lends more credence to the backlash fears than I would, he avoids the most problematic aspects of the countermobilization myth. Most important, Klarman is clear that from Anita Bryant's campaign against progressive city councils to the first Maine referendum overruling same-sex-marriage rights, backlash is a potential consequence to any victory, not just victories won through the courts. (Litigation is more potentially more dangerous only to the extent that courts might be more likely to get well in front of public opinion, although as Klarman's work also makes clear, courts tend to be far more reluctant to do this than is commonly assumed.) "Had the Hawaii legislature enacted gay marriage in 1993 or the Massachusetts legislature done so in 2003," Klarman notes, "it would likely have ignited political backlashes similar in scope to what transpired after Baehr and Goodridge." There is no such thing as risk-free political change—transformations of the status quo are rarely accomplished without substantial reaction.
One of Klarman's most intriguing and important insights is that some political backlash might even be integral to the success of social-reform movements. In From Jim Crow to Civil Rights, Klarman notes the extent to which Brown radicalized Southern politics. Yet this radicalization was probably necessary to the legislative successes of the civil-rights movement, making Northern supporters of civil rights as committed as segregationists. (As with same-sex marriage, what this backlash cost is also unclear, since the "moderation" of Southern governors like Big Jim Folsom who were displaced by the Brown backlash was more rhetorical than substantive. Folsom may have engaged in less overt race-baiting than George Wallace, but he wasn't about to lead a dismantling of Jim Crow either.) Similarly, whatever the short-term political advantages of the conservative mobilization against victories by the LGBT-rights movement, the opposition itself tended to alienate moderates. This helps to explain why public opinion has strongly tended to favor gay and lesbian rights (including same-sex-marriage rights) despite the dire predictions of proponents of the countermobilization myth.
While it was just released, From the Closet to the Altar was of course completed before the remarkable run of victories in 2012, and to show how quickly the ground is changing, Klarman makes an argument—one that I probably would have agreed with at the time it was made—that "Obama is unlikely to endorse gay marriage before the 2012 election." While Klarman has no way of knowing not only that Obama would endorse same-sex marriage but that it would be a non-issue in the campaign—let alone that supporters of marriage equality would turn the tables in state referendums—his bottom line is optimistic: Same-sex marriage, Klarman convincingly argues, is inevitable, and the opposition will eventually (although certainly not in the short term) "whither away."
The ultimate lesson of same-sex-marriage litigation is that politics is about conflict and that while it's important to be mindful of backlash, it's also a mistake to let it discourage any potentially successful strategy (including litigation). There's no painless way of altering a status quo that many people are committed to, and short-term countermobilization does not ensure defeat in the long run. The success of the LGBT-rights movement is a testament to this fact.
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