Yesterday the Washington Post published a nice summary of the various federal lawsuits underway in the court battles over same-sex marriage, a piece occasioned by a panel at the College of William and Mary Law School's Institute of Bill of Rights Law. The panel, according to reporter Robert Barnes, was debating whether the government's political or judicial branch should decide whether same-sex couples' bonds should be recognized as "marriage" by federal law. Given that LGBT folks now -- after years of organizing effort and personal travail -- have some (some!) political traction, shouldn't we be deciding the question in legislatures, not courts?
Judge J. Harvie Wilkinson III, the well-regarded conservative on the U.S. Court of Appeals for the 4th Circuit, called the question "wrenchingly hard." He noted the contributions of gay Americans and said it was striking that the movement's aims in the courts is to "partake in the most traditional" of American rights: to serve in the military and to get married.
But he said the Constitution protects "not only individual liberty but democratic liberty." ... He noted the rapidly changing political environment, and said there is no reason to believe gays could not achieve their goals politically, rather than by judicial fiat.
He was answered by Paul M. Smith, a celebrated Supreme Court practitioner who happens to be gay. The DOMA cases, he said, place "states' right and gay rights on the same side."
Striking the law would not require other states to sanction same-sex marriages, he said, but only require federal recognition of legal same-sex marriages performed in those states that allow it.... Politics are changing, Smith agreed with Wilkinson. But that doesn't mean gay Americans should wait, he said, or "stop asking for the Equal Protection Clause to be applied to you."
For law and politics nerds (like you and me, dear reader), these are indeed wrenchingly difficult questions. But in practical terms, they are beside the point. Yes, a conscientious judge might have to wrestle with whether it was within his or her authority to rule on these questions. They are issues that indeed deserve the hundreds of pages of legal briefs that have been filed in various courts, both state and federal.
But in reality, social change happens by using every means available. Ordinary people present their cause to those around them through means decorous and otherwise: at the Thanksgiving dinner table, in grocery-store parking lots, in newspaper op-eds, in carefully grounded academic research. They do it by creating organizations that persuade and pressure movers in business, politics, and religion, or by occupying Wall Street. Legislatures feel the pressure of pending court decisions. Journalists and editors' minds and hearts are changed, and they begin reporting on the cause with more attention and respect (objectively, of course). Courts look at public opinion and legislatures and decide whether they can afford to get in front of, or should stay behind, the movement.
Would Obama and Congress have repealed DADT without the pressure of the challenges moving slowly through the courts, Lt. Dan Choi chaining himself to the White House fence, think tanks putting out position papers, and nonprofit groups organizing inside and outside of the military? In the same-sex marriage issue, I've listened to years of LGBT debates about whether the legal advocacy groups -- GLAD, Lambda Legal, the National Center for Lesbian Rights -- were getting too far ahead of organizing groups on the marriage issue. But the court cases they've brought --combined with the pressure of lesbians and gay men who wanted to marry even when the big organizations' leaders thought that was too much to ask for -- pushed those other organizations into defending their wins. Evan Wolfson at Freedom to Marry lays out a marriage strategy that could be adapted to other forms of social change as well. Some of the change happens state by state; some happens court by court; some happens in D.C.
At TheAtlantic.com, Kerry Eleveld -- an outstanding LGBT journalist who recently jumped the fence to become a strategist at Equality Matters -- proffers a similar model to other causes. But I think she underestimates how much fiercer the opposition to, say, environmentalism, is -- where not just social comfort but vast amounts of money are at stake. She's right that movements cannot rely on any one savior: not a politician, not a particular court, not a single organization. If a court says no, or a particular law fails, or a politician's shining armor turns out to be tarnished, the movement keeps on moving through other means. No single effort's loss or gain is final. All these channels are part of the same democratic process of social change.
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