Beyond the Courts?
On discrimination, the court effectively lowered the bar for employers (having a non-discrimination policy is apparently, in the court's view, proof enough that there's no discrimination going on) and raised it for employees (unless you actually have written proof that you've been personally discriminated against, get back to work). That's troubling enough in and of itself, but I expect little different from this court. What troubles me more is a theme I've heard in some progressives' responses to the court's ruling, and the implications for progressive change, especially where minorities are concerned.
The refrain is a familiar one, actually; one heard after some major victories and disappointments in the marriage equality movement. It's no less disconcerting to hear it in the context of the Walmart ruling. Matt Yglesias made that refrain the title of his post in response to Dalia Lithwick's post on the Walmart decision: Don't look to the courts as an engine of social change.
Something that I think most people don’t realize is that for the vast majority of American history, the judicial branch has been a very conservative elite-dominated institution. Most people’s view of the matter is distorted by the historical aberration that occurred roughly between the Brown and Roe decisions, with a lot of good criminal justice decisions in between. Even there, one has to recall that with its landmark civil rights decisions, the Supreme Court was in large part just reversing what the late 19th century Supreme Court did by throwing out the civil rights legislation of the Grant administration.
I think Dahlia Lithwick’s take on the conservative opinion written on the Wal-Mart sex discrimination case illustrates the point:
A lot of critics are saying that this decision has created a new rule: Some companies are simply too big to sue. But that’s only half the story. The other half is that in the court’s eyes, sex discrimination is simply too pervasive to be a problem. […]
Scalia concludes that (even in advance of a lawsuit) the women could not show that Wal-Mart “operated under a general policy of discrimination.” That’s partly because “Wal-Mart’s announced policy forbid sex discrimination” and partly because he rejects the plaintiffs’ claim that Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters constitutes a policy at all. As Scalia sees it, in giving local managers so much leeway in making personnel decisions, Wal-Mart actually established “a policy against having uniform employment practices.” It’s not Wal-Mart discriminating against women. It’s just all these men doing it, and God knows men don’t have unconscious biases and prejudices against women.
Matt May have a point, in terms of the long view of the court and that it's merely reverting back to it's natural state — that of the privileged taking care of the privileged. But as one who's life was profoundly impacted by rulings like the Brown ruling, not to mention Lawrence v. Texas and Loving v. Virginia, I'm more interested in what caused the court to change and start "reversing wha teh late 19th century Supreme Court did by "
Liza Featherston took this a bit further, in a post titled "'Dukes v. Walmart' and the Limits of Legal Change."
…More importantly, though, the Dukes ruling underscores the need for more and better organizing by workers and citizens. Change cannot come from the courtroom alone.
Intriguingly, the ruling comes amidst an impressive resurgence of organizing aimed at changing Walmart. The United Food and Commercial Workers (UFCW), along with citizens in urban communities all over the country, has been working tirelessly to block the retailer’s plans to take over large cities like New York, Washington and Philadelphia. Far more prominent in these fights than ever before are the people who should have been in the forefront all along: Walmart workers, some of whom have been speaking out against their employer in public hearings and at demonstrations. The UFCW has started a group called Wal-Mart Workers for Change, a workers’ center through which Walmart workers can organize and pressure the company for better wages and working conditions without—prematurely—enduring grueling and costly battles for official union recognition.
Women—whether or not we work at Walmart—are furious about this Supreme Court ruling. Imagine if the UFCW campaign tapped into the outrage of women all over the country. For a company already economically vulnerable—after all, in these tough economic times, the poor people that traditionally made up its customer base can no longer afford to shop at Walmart—some serious political opposition, and consumer disgust, might hurt even more than a lawsuit. It’s time to stop depending on the legal system alone.
Serious political oppoisition, in a post Citizens United world, costs serious money if you intend to have a seat at the policy-making table. Serious consumer disgust requires either numbers sufficient to reach a critical mass that makes the kind of economic impact it takes to get Walmart's attention, or the ability to convince enough consumers to join a boycott in support of a cause that doesn't directly affect them, when doing so might require them to spend more money in a recession. Beyond the context of Walmart and its policies, the same applies to any group without sufficient might, in terms of money or sheer numbers, use persuasion alone as a path to justice.
After every major victory or defeat for the marriage equality movement, we've been told that we were moving too fast, and that "relying" on the courts would prove detrimental as it would cause a backlash that could set us back years.
In a Salon article about the national impact of the New York senate vote, Freedom To Marry president Evan Wolfson said the goal of marriage equality across the country is achievable by 2020, "if we do the work and keep making the case."
Wolfson, president of the advocacy group Freedom to Marry, said the goal is attainable by 2020, or sooner, "if we do the work and keep making the case."
The work — as envisioned by leading activists — is a three-pronged strategy unfolding at the state level, in dealings with Congress and the Obama administration, and in the courts where several challenges to the federal ban on gay marriage are pending.
"This will be a big boost to our efforts nationally," said Richard Socarides, a former Clinton White House adviser on gay rights. "It will help in the pending court cases to show that more states are adopting same-sex marriage, and it will help in the court of public opinion."
If marriage equality across the country is reachable by 2020, its because we've been doing the work and making the case for years, and because doing so has been a "three-pronged" strategy that uses the courts as well as legislation and public education and persuasion as means of attaining justice. I was there when that work began.
The Problem of Persuasion
In 1994, I was in Washington, D.C. working at the Human Rights Campaign, when the Baehr v. Miike Hawaii Supreme Court case made marriage equality a national political issue. It was so close to an election year that it was inevitable that the religious right would exploit it for political gain. Sure enough, DOMA was the result.
But what I remember most clearly from that time was the discussion over what gay organizations should do regarding the marriage equality movement. It was very much a "bottom-up" movement, as opposed to "top-down," because the leadership of gay and lesbian political organizations had seen the "numbers" on gay marriage. That is to say, the polling. And no matter how the question was asked, no matter how you looked at the result, the numbers were clear: gay marriage was a losing issue for us.
Now, of course, that's changed. Polls indicate that a majority of American support marriage equality, albeit a slim majority. A recent Gallup poll showed that 53% of Americans support legal recognition for same-sex couples, up from 44% last year.
That's due in large part to the work of people like Wolfson, and thousands of us who have come out to friends, family, co-workers, etc, because knowing someone gay makes people more likely to support marriage equality. That was certainly the case for one New York Senator's vote.
Nobody ever expected Carl Kruger to vote yes. A Democrat from Brooklyn, known for his gruff style and shifting alliances, Senator Kruger voted against same-sex marriage two years ago, was seen as a pariah in his party and was accused in March of taking $1 million in bribes in return for political favors.
Some gay activists, assuming he was a lost cause, had taken to picketing outside of his house and screaming that he was gay — an approach that seemed only to harden his opposition to their agenda. (Mr. Kruger has said he is not gay.) But unbeknown to all but a few people, Mr. Kruger desperately wanted to change his vote.
The issue, it turned out, was tearing apart his household. The gay nephew of the woman he lives with, Dorothy Turano, was so furious at Mr. Kruger for opposing same-sex marriage two years ago that he had cut off contact with both of them, devastating Ms. Turano. "I don't need this," Mr. Kruger told Senator John L. Sampson of Brooklyn, the Democratic majority leader. "It has gotten personal now."
Mr. Sampson, a longtime supporter of same-sex marriage, advised Mr. Kruger to focus on the nephew, not the political repercussions. "When everything else is gone," Mr. Sampson told him, "all you have left is family."
Coming out is a powerful political act, because it brings the issue home and personalizes it as Ta-nehisi Coates points out,
Coming out to your family is a specific trauma that doesn't really translate directly to other groups who've the felt the boot on their neck. If there's a parallel experience, it doesn't occur to me. As indicated here, it's often the source of great pain.
But it is also the source of great political power. People who seek to ostracize gays, must always countenance the potential for disappearing their very family members. It's not like red-lining black people into ghettos. Homophobes must always face the prospect of condemning their own flesh and blood.
Surely there are those, who, with depressing regularity, rise to the occasion. But democracy in America is fundamentally optimistic in that holds that a critical mass of the electorate is persuadable. I've long been skeptical of this implicit assumption. But as I've aged, I have come to see it as quite brilliant. In the present case, I don't know of a more powerful tool of democratic persuasion than the prospect of losing family.
That may be, but as Matt Yglesias — interestingly enough — point out, it underscores the problem with persuasion.
On LGBT equality, you have a virtuous circle. The more egalitarian society becomes, the more people are comfortable coming out. And the more people are out, the wider this circle of sympathy spreads. And an important question is what to do about all the other cases when it’s harder to take advantage of this kind of dynamic. The poor are often invisible to large swaths of people merely because they live on the other side of town. So what about the even poorer people who live in Bangladesh or Bolivia? Human sympathy is a tremendously powerful force, but the circumstances in which it can be mobilized are sometimes difficult to find.
Human sympathy is indeed powerful, but if it becomes the primary or exclusive path to attaining justice, which path to justice remains for those who need and deserve justice, but have little hope of achieving a critical mass of human sympathy?
Which Way To Justice?
As I wrote about health care reform, it becomes a question of whether we’re talking about an injustice or something that’s merely unfortunate.
What does this matter? It matters, because an injustice and a merely unfortunate circumstance add up to to different levels of urgency. An injustice, to many people, is intolerable, and thus so is any delay in delivering justice.
For progressives health care reform is comparable to other movements for social change, like the civil rights movement, the women’s movement, or the LGBT movement. Each sought, and still seeks, to extend what the basic rights of citizens and human beings to an ever wider spectrum of people than were afforded such by the status quo. Health care reform then, means health care for all. Not “health care for a bit more.” Progressives are less likely to see such as a victory.
All of these movements for social change came up against moderate voices that called for them to wait. Unlike conservatives, who “stand athwart yelling ‘Stop’,” moderates call for progressives to wait, to slow down the extension of equality, of civil rights, and of human rights including the right to quality, affordable health care.
Often, but not always, these sentiments are expressed by people who are invested and included in and/or protected by the status quo that perpetuates the injustice progressives seek to address. What’s more, and this is something that separates them from conservatives, these sentences come from moderates who claim to be on the side of justice, eventually; or at least not opposed to it, somewhere down the line.
They are all for it, but not just yet. They just want more time to think about it, to get used to it, and they’ll eventually come around. In the mean time, they want us to wait.
But waiting for a sufficient number of hearts and minds to change, waiting for a critical mass of “human sympathy,” or even waiting for “the Bossman” to have a change of heart (in an economy where there’s little monetary incentive for him to do so), for many of us means continuing to live with injustice, indefinitely and without remedy.
Perhaps the real difference the Massachusetts Supreme Court’s Goodridge v. Department of Public Health decision made was that after it happened, people noticed that the earth kept right on spinning. I don’t know if they were surprised that the mountains didn’t crumble, the oceans didn’t boil, and their own marriages were in the same shape their were before, but most probably noticed disaster didn’t strike. And the other sides warnings of doom became a bit less effective.
That process, however, took time, and might not have gotten started when it did if the Massachusetts court hadn’t ruled the way it did, or if the plaintiffs never even filed suit, but waited for hearts and minds to change. Instead, the plaintiffs and the gays and lesbians allover the state attained justice from the courts, and the court catalyzed the change in hearts and minds after — in the wake of the ruling — legal same-sex marriage began in Massachusetts, and the world didn’t end. More than 10,000 couples have married in Massachusetts since. And the world still hasn’t ended.
At the same time, I harbor no illusions about the ability of courts to change hearts. No court ruling ever made anyone less racist or homophobic. No court ruling ever change anyone’s belief about gay people or any other group. Even in Massachusetts, the Supreme Court’s decision caused a reaction from marriage equality opponents, which resulted in not one but two constitutional conventions in the same year, in which two constitutional amendments — one prohibit same-sex marriage in the state, and one to prohibit same-sex marriage and create a system of civil unions — failed. Had either passed, it would have been presented to voters.
But I’ve always said I care less what people believe about me and my family than how we are treated, and that’s something the courts can change, more quickly than persuasion. As in Massachusetts, where the court handed down a ruling and then gave the state legislature a 180 days in which it had to figure out how to implement. The legislature took no action to implement it or block its implementation, and little more than a month after the court’s decision, same-sex couples in Massachusetts were issued marriage licenses, and married — with all the legal benefits, rights, and protections the state conferred upon heterosexual spouses. (After, by the way, having long ago assumed the same responsibilities.)
Without the courts as a path to attaining justice, gays in Massachusetts might have waited , for justice and lived with injustice much longer, and might still be waiting now. Likewise, African Americans might have waited a generation or more for change to come, in absence of the Browndecision. My own generation might have been born still waiting for “human sympathy” to reach that point at which the majority of people decide to change an unjust system, from which they themselves benefit, with nothing more than their conscience to compel them.
In the wake of the Dukes decision, it looks like one path for workers seeking justice in the workplace has been blocked. Yes, exclusive reliance on the courts to advance progressive change — for which I’ve been using “justice” as a kind of shorthand — isn’t a good idea, because events like the Dukes decision can potentially bring a halt to our work of “bending the arc of the universe” towards justice.
No movement for progressive change has ever relied solely on one strategy, but succeeded by applying many different strategies when and where appropriate. Nor did they accept roadblocks along any path to justice, but fought to remove them. After all, a roablock to justice is itself an injustice.