by David Cole, Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown Law
President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the seat vacated by Supreme Court Justice Antonin Scalia’s death has many wondering what we might expect from a Court with a liberal majority. It’s been a long time; the Court has not had a majority of liberal justices since the early 1970s. If Republicans maintain their current obstructionist stance, that may not change until and unless Hillary Clinton wins the presidential election. But even if Garland is ultimately confirmed, we ought not to expect major changes from the Court. Stare decisis places significant constraints on the ability of any Court to change direction; absent the rare overruling of precedent, most of the action is at the margins. The margins are important, to be sure, but they are margins.
More to the point, as I show in my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, major transformations of constitutional law are generally attributable not so much to new Court personnel as to the extended, in-the-trenches work of citizens working in association with like-minded citizens to lay the ground for change, most often outside the federal courts altogether. Constitutional law changes slowly, from the ground up, not suddenly, from the top down.
Take marriage equality. In 1972, the Supreme Court in Baker v. Nelson summarily dismissed a petition arguing that the Constitution requires recognition of same-sex marriage as not even presenting a substantial federal question. Yet in 2015, the Court in Obergefell v. Hodges recognized a constitutional right to marriage equality. One cannot explain that remarkable shift simply by examining the changed personnel on the Court. The Court in 2015 was, if anything, more conservative than the Court in 1972. Rather, one must look at the work gay rights groups did in a wide variety of forums beyond the federal courts.
Gay rights activists did not immediately ask for marriage. They started small and worked incrementally, seeking recognition in state family law of parental rights of gay and lesbian parents, urging private and public employers at the state and local levels to extend modest work-related benefits to same-sex domestic partners, and lobbying for anti-discrimination laws to include protection for gays and lesbians. Only when gay rights groups had made substantial progress in particular states did they seek marriage recognition—and even then only in the most favorable states. They also worked with public relations experts to determine how best to argue for marriage equality in public referenda, learning from their losses and adjusting their strategies as they went. Other groups pressured the media and entertainment industries to represent gays and lesbians more positively, and fought for legal protections that made it safer for gays and lesbians to “come out.” All of these changes were essential steps along the way to Obergefell, and they were taken deliberately, strategically, and over more than two decades. It’s that work that explains the constitutional recognition of marriage equality.