When do social movements use the courts in pursuing their goals? The question might be rewritten to say: assuming that activists will always or often use the courts as one of many strategies, when are they successful in court? When is the law likely to change in response to activist’s lawsuits? This is a pertinent question as we see the U.S. Supreme Court taking up two cases about marriage equality.
One case is about Proposition 8, which took away the right for same-sex couples to marry in California (Hollingsworth v. Perry), and the other case (U.S. v. Windsor) is about the Defense of Marriage Act (DOMA), a federal law passed in 1996 that has the effect of denying same-sex couples a variety of the many benefits that married couples of the opposite sex receive. The Court had its choice of same-sex marriage cases and selected a DOMA case that might have signaled its leaning toward finding a constitutional right to marry. In U.S. v. Windsor, the plaintiff Edie Windsor had a 40-year engagement and 20-month, same-sex marriage to her partner, Thea Spyer. Windsor sued after being hit with half a million dollars in inheritance taxes that an opposite-sex widow would not have had to pay.
In other case, the dynamic tensions in the state of California have been made clear. Although California is widely perceived to be a democratic stronghold, or “blue” state, it has a conservative or “red” streak in non-coastal areas. Thus, the law has flip-flopped back and forth. First, the California Supreme Court opened the door for gay marriage, but a voter initiative known as Proposition 8 against same-sex nuptials just passed a few months later, in late 2008. Then, in another reversal, the Ninth Circuit U.S. Court of Appeals (the federal court sitting in California) voided Prop 8 on the ground that the state could not take away a right it previously granted.
Looking at the California case and the Windsor case on DOMA from New York is like holding up a mirror to the rest of the country where over the last few decades, the cultural view on this legal issue has varied and even appears polarized—with states heading in two distinct directions, some for, and some against, same-sex marriage. But most surveys show that the dominant view is for marriage equality, especially in younger demographics. The turning tide of the individual states, although small in overall number, is also tending toward recognizing the right to marry (9 states total), as against 31 states with DOMA-like provisions requiring one man and one woman. There seems to be a shift toward belief in marriage equality and the practice of marriage equality at the state level, and so a prediction might be ventured for a similar legal change at the federal level.
Predicting a Win for Marriage Equality
Although many factors influence a legal outcome, both legal and extra-legal (read: social) it is possible to predict legal outcomes. In my view, Supreme Court of the United States (SCOTUS) will follow the cultural trend and shift away from denying gay and lesbian rights to providing a constitutional right or at least a limited recognition of the liberty, equal protection, and privacy interests involved. So far SCOTUS has been heading, although slowly, in that direction. The Court ruled in 1972 that there is no constitutional right to marriage for same-sex couples (Baker v. Nelson), and, in 1986, upheld Georgia laws criminalizing consensual acts occurring in private between consenting gay and lesbian adults (Bowers v. Hardwick). However, in 2003, SCOTUS shifted direction, ruling that it had too narrowly construed the liberty interests of adults in the Bowers case, and so reversed itself, invalidating similar criminal laws about private conduct in Lawrence v. Texas.
What explains legal change around civil liberties and rights? The answer comes from Durkheim, who theorized culture’s influence on legal outcomes. The impulse is to look at Weber for answers, since he was a lawyer, but Durkheim does a better job explaining legal change. What makes one law become another?
Let’s presume that activists will turn to the courts if they have the resources. Durkheimian theory explains when their lawsuits will be successful. According to Durkheim, there is interplay between cultural beliefs, on the one hand, and practices or behaviors, on the other hand, especially sanctioning behaviors. Social groups (such as a nation) develop and maintain internal cohesion because of shared practices and rituals, leading to a collective conscience and shared conceptions of the sacred. These conceptions turn back into practices. But in Durkheim’s model, practices are primary. Applying this model to the topic, there are gay and lesbian couples in our communities, and so their unions are recognized in practice. The law (or set of shared beliefs and sanctions) will follow in the tracks of the shared practices.
From Cultural Shift to Legal Shift
Marx and Bourdieu offer variations of this model of social cohesion and social change. For Marx, self-interested ideas are the primary cause of changes in both behaviors and law. Bourdieu looks at fields of endeavor (such as occupations) that generate Durkheimian groups, remaining bound together by shared beliefs regarding legitimate practices. Thus, we have practices leading to beliefs, which eventually become customs, and eventually shared cultural codes, and, soon enough, common rules or sanctions, or law.
When activists turn to law and demand legal change, it only works when the cultural conditions and political conditions are out of alignment with law. The law changes to match social beliefs and practices. If groups within a multicultural society—such as the U.S.—have enough overlap or interaction to create shifting morals or renewed senses of the legitimate solution to potential conflicts, then conditions are right for legal change.
According to Sumner’s classic work Folkways (1907), laws change to match social mores. If there is enough interaction between groups with different mores, then practices that were once considered “outsider behaviors” or illegitimate practices, start to become part of a collective plan. What was considered illegitimate becomes tolerated, and then acceptable, and eventually customary.
Where customs are not shared, there is conflict, which must be resolved either by separating the groups (physically by place or culturally through imagined communities) or by aligning mores. To avoid conflict and enjoy shared lives in communities, marriage equality becomes important and eventually becomes the law. An activist group brings the idea forward for legal change and if the time is right, the courts will solidify cultural shifts into new laws, thereby starting a new wave of greater acceptance. Once the legal reversals of the earlier civil rights movements occurred in the SCOTUS, with Brown v. Bd. of Education changing segregation from a legal to illegal status, and with Roe v. Wade changing abortion from a crime to a constitutional right, public opinion followed the legal change.
Is the time right for SCOTUS to rule in favor of marriage equality? Yes, because cultural communities have already incorporated this change in American life. It appears that overlapping groups across U.S. states and cities have already aligned to agree on this point of civil rights and liberties. The law is likely to follow, with folkways and customs becoming law. The rulings are expected in the pending cases sometime this summer.