January 30, 2005
Private: Gara LaMarche on Progressives, Values and Courts
Editor's Note: The following is cross-posted from GaraLog, a blog run by Open Society Institute Vice-President and Director of U.S. Programs Gara LaMarche:
The op-ed by Paul Starr, co-editor of The American Prospect (in which, in the interests of full disclosure, I have published several times) in yesterday's New York Times, arguing that "liberal Democrats ... have been inviting political oblivion ... by letting their political instincts atrophy and relying on the legal system," ticked me off, and reminded me that I also meant to respond to a similar piece -- appearing recently in The American Prospect itself -- by my good friend Burt Neuborne, an NYU Law Professor and legal director of the Brennan Center.
I will pass up the temptation to start with an ad hominem observation about straight white men telling women and gays to stop being so pushy. That would be a low blow. I'll stick to the merits. The basic argument, as put by Neuborne, is captured in the following paragraph from his article:
Two important segments of the liberal social agenda -- abortion and gay rights -- remain trapped in a political limbo between the initial judicial articulation of a counter-majoritarian norm by courts and moral acceptance by the larger community. Frankly, liberals have gotten out of the habit of translating judicial victories into moral consensus through political discussion. That task can no longer be ignored if we hope to reach out to natural economic allies in the red states. But the boundaries of such discussion must be shaped, not by judicial fiat but by an ability to make a persuasive moral case to the majority. Power to shape the discussion must be transferred from ideologues to pragmatists. In short, begin working at the grass roots to build a moral consensus around civil unions and a woman's basic right to choose. But stop sounding like abortion is a sacrament, and stop insisting on judicially imposed gay marriage as a symbolic victory.
There are a number of things wrong with this. First, any significant social change, of the kind we now view as inevitable and institutionalized (women's suffrage, desegregation of public accommodations, etc.) was led by those considered ideologues and resisted by "pragmatists. " In any era, there is a majority, even among those sympathetic to the direction of the change -- as both Neuborne and Starr claim to be, and are, on the basis of their public records -- to go slow, wait until the public is ready, etc. We tend to remember and lionize the ideologues, not the pragmatists.
Second, this utterly ignores the real, sustained, hard work, over decades and at the grassroots all across the country -- not to mention using up-to-the minute communications and moblization techniques -- to build support for reproductive and gay rights. Not always successful, of course, against the onslaughts from the other side. But the idea that those who support a women's right to choose, and want to see full citizenship for lesbians and gay men, have sat on their laurels, thinking it's enough just to send underpaid lawyers into increasingly hostile, ideologically-rigged courts, is just nonsense, and no one who bothered to take a look at what is going on on the ground could think otherwise.
Third, it ridicules the views of pro-choice advocates to say they consider abortion a "sacrament." What it is, what the choice is, is a fundamental aspect of self-determination for more than half the population. Not until women could control their childbearing through contraception (which the right is still doing its best to burden, witness the unconscionable delay over Plan B, the so-called morning-after pill) and yes, abortion, did they even begin to take their place as full citizens. I don't know any advocate for abortion rights, or any woman who has had or considered an abortion, who doesn't consider it a serious and often wrenching matter, who wouldn't prefer to live in a world where abortions were rare. (That is not to say, as some would, that every abortion is a tragedy, any more than every unsought pregnancy is.) I don't know why self-styled progressives would want to play into this Rush Limbaugh caricature of the ruthless, unfeeling pro-choicer, any more than a long-time advocate of civil rights and judicial independence would want to use pejorative expressions like "the judically-imposed liberal social agenda" or "judicial fiat" -- the preferred hatchet language of the radical right. Don't think that won't come around to be used against us. Federal courts in our system (and let's not forget that the Massachusetts gay marriage decision came from a state supreme court, most of whose appointees owe their jobs to Republican governors) are MEANT to be counter-majoritarian institutions in a democracy. When they do the right thing by the constitution they deserve to be supported against attacks on their independence, not undermined.
On occasion, have lawyers and litigation strategies got a bit too far ahead of public education efforts? Has the decentralized nature of these progressive movements (even within key organizations, like the ACLU, over the years) meant that sometimes the wrong case is taken up, at the wrong time, or in the wrong forum? Certainly. All movements have to grapple with these strategic questions, with oversized egos and ill-informed judgments. No less a women's rights advocate than Justice Ruth Bader Ginsburg has suggested that Roe v. Wade was ahead of the political consensus -- this was more than thirty years ago -- and Matt Foreman of the National Gay and Lesbian Task Force, one of the most respected LGBT leaders, has made a similar point about gay marriage. These discussions need to take place -- and are, whether Neuborne or Starr realize it or not -- within rights movements, and with other progressive allies. But the idea that going too far, too fast on abortion and gay rights is at the root of what's ailing progressives, or the Democratic Party, is to hunt for convenient scapegoats, to concede far too much responsibility for the reprehensible manipulation of these issues by the right.
Where Burt Neuborne goes further than Paul Starr is that he'd throw key aspects of church-state separation over the side of the leaky progressive boat, along with the leading concerns of many women and gay people. Here, he is making a case on the merits as well as on strategic grounds. He questions whether "exercises in religious symbolism" like displays of the Ten Commandments in courthouse lobbies are really "a threat to our way of life." Relishing the role of the contrarian, Neuborne goes on to ask: "are we so sure it is a good idea to freeze religious institutions out of the delivery of social services to the poor?" Sure, he argues, there are risks of proselytization, intimidation and abuse -- but "why not take a chance?" Again, this takes no heed of the longstanding reality of religious institutions playing a very significant role in the provision of social services, both on their own nickel and -- as in child welfare in New York City -- with significant public funds. But the line drawn against proselytization -- against subjecting the most vulnerable people to religious indoctrination, as the Times has reported Christian missionaries are doing in their work with the tsunami survivors in Asia -- is a very important one. The ACLU and other groups have catalogued numerous abuses in the model "faith-based" programs that President Bush touted in Texas. We don't need to wait for the evidence, it's there. Not to mention that, aside from the separation of church and state issues, the huge flow of money to religious abstinence-only programs and the like is the biggest, old-fashioned patronage gravy train since the days of Boss Tweed, dressed up in moral imperatives.
Burt Neuborne's second thoughts on church-state separation aside, the advice that is coming from him, Paul Starr and others purports to be friendly guidance to fellow-travellers. If they think marriage is only for a man and a woman, or that minors should have to get their parents' consent for an abortion, they aren't saying it here, and presumably their ideal world would look much like that of the advocates whose judgment and tactics they question. So let me conclude by engaging them on strategic and political grounds.
The problem of the Democrats is not, I believe, an excess of ardor or purity on some social issues. It is that the weakness of their agenda and their message on issues that most voters care about more -- the economy and national security -- makes the social issues loom larger, and the marginal electoral drag with some voters more costly. Now most Democrats, across the party's spectrum, seem these days nostalgic for the political success of Bill Clinton. It's worth noting, though, for all those who think abortion and gay rights are the problem, that Clinton was the most pro-choice President in American history, a down-the-line supporter. He handled gays in the military ineptly, by not sticking with his original conviction and compromising on an untenable policy that continues to cost us today in discharged Arabic interpreters, etc. But with all that he was also the most gay-friendly President in American history. I don't recall these issues costing Clinton -- who by the way did much better with white evangelicals, a bloc that Bush has made strong inroads into, than either Gore or Kerry -- because of the strength of his overall message and program. (Of which I am NOT an unabashed admirer, but that's another matter.)
That's the lesson I think those fretting about the future of the Democratic Party should take to heart.