The eminent legal scholar and federal judge Richard Posner has a self-described "revisionist" piece on litigation and same-sex marriage in The New Republic. Since it is partly a review of Michael Klarman's From the Closet to the Altar, much of what I have to say about Posner's piece is contained in my review of the Klarman book, and I won't repeat all of those arguments in the same detail here. But Posner's piece is instructive because it embodies some fallacious assumptions about institutional change in American politics that cause many scholars to misundertand the role litigation can play in social reform.
What's most telling in Posner's review for me is this:
The books are scholarly and well written, but deficient in payoff. They are basically just narratives of the history of homosexual marriage in the United States.
I don't think this is right. The argument in Klarman's book is subtle—in part because he started off, like Posner, believing in the conventional backlash thesis, but unlike Posner rejected it because the evidence stopped supporting it—but it's there. Ultimately, Klarman argues that litigation played an important role in advancing same-sex marriage rights, and finds that the evidence does not support the most common reasons cited for not using it. Posner, conversely, still explicitly relies on Gerald Rosenberg's landmark The Hollow Hope, and his argument has many of the same strengths and weaknesses. I'm not sure if Posner has read the second edition of The Hollow Hope, but he seems to endorse Rosenberg's application of his basic argument to same-sex marriage. Which is rather problematic given that Rosenberg's argument that using litigation to advance same-sex marriage was foolish and counterproductive has been disproven about as thoroughly as such a counterfactual can be.
Essentially, Posner's strategy is to use a now-banal (not really "revisionist") causal argument to obscure the more interesting questions about legal reform and LBGT rights. Posner—and Rosenberg—are 100 percent right that the courts generally cannot independently produce social reform. Judicial decisions are almost certainly not why same-sex marriage has become more popular, and a wave judicial decisions protecting same-sex marriage rights would have been inconceivable without the successes of the gay and lesbian rights movememnt. And in the context of civil rights, this insight (which was very controversial within the civil rights movement in the 60s—Thurgood Marhsall thought direct action was essentially a waste of time) retains considerable power. Because intergrating schools requires the ongoing collaboration of a large number of state and local officials, judicial decrees mean almost nothing without substantial support from other political actors, which is why there was virtually no desegregation outside of the border states before the passage of the Civil Rights Act. Brown v. Board mattered, but only indirectly, by setting in motion the chain of events that would increase support for federal protection of civil rights.
Same-sex marriage, though (like abortion) is different; it doesn't require the same level of collaboration and is an area where the courts have much greater capacity. Which brings us to the more interesting question—not whether the courts, entirely by themselves without any additional public or political support, can create social change, but whether within a context of increasing public support litigation can provide rights that would otherwise not have been recognized. Posner makes no serious attempt to engage with this question. Here's the core of his argument about why litigation has had only a trivial effect:
If one turns from narrative to statistics, the significance of judicial decisions (and for that matter backlash) to homosexual marriage, seemingly slight, recedes further. The earliest public-opinion polling on attitudes toward homosexual marriage was in 1988. In that year roughly 11 percent of Americans favored allowing such marriage and 68 percent opposed it. (All these percentages are approximate, because no two public-opinion polls agree exactly.) Presumably the 11 percent included most homosexuals. Nobody knows the exact percentage of homosexuals in the American population, but the current estimate is that it is between 3 and 4 percent. Assuming that most of them support homosexual marriage, in 1988 fewer than 8 percent of heterosexuals thought that homosexual marriage should be authorized. By 1996 the figure had risen to 24 percent (I am subtracting 3 percent from the poll), with 68 percent opposed (so the percentage with no opinion was also dropping). By 2003, the year of Lawrence, the figures were 28 and 65 percent. The approval rate continued to rise, and by May of this year, the month before the Supreme Court’s two homosexual-marriage decisions, about 50 percent of poll respondents approved of homosexual marriage and slightly more than 40 percent disapproved. The increase in approval in the decade since Lawrence has been astonishing. And the approval rate is likely to continue rising, because it is already 67 percent for persons under 30, dropping to 38 percent for persons 65 and older. The difference is almost certainly generational, as there is no reason to think that aging affects one’s thinking about homosexuality.
While he doesn't emphasize the point, Posner does at least concede that the core of the countermobilization argument made by Rosenberg and others—that judicial victories are likely to be counterproductive because they create a backlash that undermines public support—has been quite conclusively been proven wrong. The fact that most major victories for gay and lesbian rights have been accomplished through the courts has not stopped the support for gay and lesbian rights from continuing to increase.
But by focusing solely on public opinion, Posner sidesteps the crucial "compared to what?" question. Posner seems to be making the erroneous assumption that changes in public opinion are inevitably manifested in public policy. But of course American political institutions aren't "majoritarian" in either theory or practice, and the Madisonian institutional structures common to the federal government and every state with the half-exception of Nebraska guarantee a powerful status quo bias. Increasing public support for LBGT rights made judicial decisions more likely, but it is simply wrong to assume that absent judicial action legislatures would have granted the same rights, and it is certain that they would not have done so on the same time frame. It's not a coincidence that most advancements for same-sex marriage rights have been judicial, not legislative. (In the next paragraph, Posner blandly notes the states that have "authorized" same-sex marriage without detailing which institution was responsible for these authorizations in most states, which would fatally wound his own argument.) Windsor is an additional case in point—DOMA no longer has very deep political support and nobody seems to be claiming that Windsor created any appreciable backlash, but nonetheless DOMA would not have been repealed while the contemporary Republican party controls any federal veto point. Since this is likely to be the case for at least several more election cycles, this isn't a trivial distinction. Even the enormously unpopular ban on gays and lesbians in the military was barely repealed a lame duck Congress that with large Democratic majorities in both houses that are rare in the current political context.
Posner's key mistake is to assume that gays and lesbians are merely seeking public acceptance. But while public acceptance may be necessary for the advancement of fundamental rights it's not sufficient; gays and lesbians actually also want their legal rights protected. Litigation may not have much to do with the former but it has been very important to the latter.