A changing legal landscape
In American history civil rights issues have often found their footing in the high courts. Decisions such as the recent Supreme Judicial Court of Massachusetts’ ruling legalizing same-sex marriage in Goodrige v. Department of Public Health exemplify the courts’ ability to swiftly expand civil rights. However Proposition 8 in California, which amended the state’s constitution to outlaw same-sex marriage in response to a California Supreme Court decision to permit them, narrowly passed in November and circumvented the Court’s ruling in an unprecedented fashion. Similar propositions in other states, while not directly overturning pre-existing court rulings, have preemptively blocked judicial attempts to defend civil rights by amending state constitutions. Yet this trend does not mean civil rights issues are about to lose the courts as a defender. Instead, while civil rights struggles are undoubtedly expanding beyond the judicial system, the courts will continue to play an important role in their resolution.
The Historical Place of Civil Rights
What accounts for the courts’ frequent intervention in civil rights disputes? Alan Dershowitz, professor at Harvard Law School, told the HPR that modern civil rights decisions have their roots in the progressivism of the Warren Court of the 1950s and ‘60s and the conservatism of Congress in that era. According to Dershowitz, American legal history has seen “pendulum swings” in the ideologies of high courts and the legislature. During the Warren Court, civil rights advocates realized they had openings for success in the courts that were not available in Congress. Once a judicial pathway to progressive civil rights rulings was established, pro-choice activists looked towards the courts in Roe v. Wade and found similar success. Thus civil rights activists, having succeeded in the courts, continued to advocate there.
This is not to suggest that the courts hold a monopoly over civil rights. In an interview with the HPR, Tim McCarthy, lecturer at the Kennedy School of Government and member of Barack Obama’s LGBT Leadership Council, claimed that successful civil rights movements require three conditions: a widespread, cohesive popular insurgency, political allies who are willing to embrace what the insurgency is advocating for, and support from high courts. “Even Thurgood Marshall understood that the movement to bring Brown v. Board of Education to the Supreme Court was only one part of the equation,” noted McCarthy.
Future of Civil Rights in the Courts
In light of Proposition 8 in California and other similar amendments to state constitutions, it seems courts are beginning to lose sway to popular insurgencies and political allies. Dershowitz believes that courts are becoming a lesser part of the civil rights equation, continuing to say that the “trend will continue.” He explained that both sides of any civil rights issue will advocate in whichever arena best suits their goals, be it the courts or popular movements and propositions. Proposition 8 proved that opponents of court rulings can circumvent the decisions, meaning civil rights struggles must also be fought amongst the populace. This is a “mixed blessing” according to Dershowitz, because while it may delay the legal action for which civil rights activists are searching, it necessitates that they build popular support. “Civil rights advocates have relied too heavily on the courts,” noted Dershowitz, explaining that after Roe v. Wade, pro-life groups began galvanizing popular support while the pro-choice movement became largely superfluous. If a civil rights movement succeeds outside of the courts, then it will have done so by gaining widespread popular support, which in this new environment is likely a more lasting benefit than a court decision the public is not fully behind.
Civil rights issues will never completely leave the courts; instead the battlefield has simply expanded. McCarthy said “it is important to keep these issues in the courts,” pointing out that there is still an intense and ongoing legal struggle against Proposition 8 in California, including a series of cases, modeled after Brown v. Board, to eventually bring to the Supreme Court. Yet the efforts of same-sex marriage supporters will need to go beyond just court cases, embracing a more expansive arena that includes popular opinion and political allies. While the courts will no longer always have the final say on civil rights issues, they will continue to play a vital role.