COURTHOUSE DEMOCRACY AND MINORITY RIGHTS: SAME-SEX MARRIAGE IN THE STATES
by Robert J. Hume. New York: Oxford University Press, 2013. 297 pp. Cloth $. ISBN: 978-0-19-998217-2
Reviewed by Philip A. Dynia, Department of Political Science, Loyola University New Orleans. Email: Dynia [at] loyno.edu
In WHATEVER HAPPENED TO BABY JANE?, director Robert Aldrich’s 1962 excursion into Hollywood Gothic, Jane (Bette Davis) spends much of the film devising ways (large and small) of torturing her wheel chair-bound sister Blanche (Joan Crawford). At one point, Blanche confronts Jane, saying “You wouldn’t be able to do these awful things to me if I weren’t still in this chair.” To which Jane responds: “But you ARE, Blanche! Your ARE in that chair!”
That scene came to mind reading the last two sentences of Hume’s book: “When state supreme court justices are insulated from the public, when their decisions are safe from being overturned by initiative amendments, and when the political and cultural environments are receptive to their decisions, state supreme court justices can move public policy in new, more innovative decisions. State supreme courts can act as checks on majoritarian institutions and provide relief for disadvantaged minorities” (p.198). The problem, of course, is that supreme court justices in most states are not in this position. They operate in a regime of “courthouse democracy,” characterized by contested judicial elections and initiative amendment procedures that make it relatively easy for citizens to overturn unpopular decisions enforcing minority rights on extremely salient moral policy issues such as same-sex marriage. If you will, these judges are the Blanches of state judicial systems.
Robert Hume examines both the Blanches and the Janes of state judiciaries to analyze their response to same-sex marriage cases. And while, in the wake of UNITED STATES v. WINDSOR and the seemingly inevitable successor to HOLLINGSWORTH v. PERRY in which the issue of the constitutionality of bans on gay marriage will be directly confronted, it would be tempting to argue that the handful of state decisions on the topic prior to the issue going to the federal courts will be relegated to a footnote in our constitutional history, and that Hume is at this point simply making a mountain out of a molehill. That temptation probably ought to be resisted. The state same-sex marriage cases offer lessons about the capacities of state courts to bring about dramatic policy changes (lessons that Hume derives from solid research and skillful analysis of existing and his own original data). In addition, Hume offers a plausible argument that state courts were the catalysts that made same-sex marriage possible.
In Part I, COURTHOUSE DEMOCRACY’s overriding concern is the conditions under which state supreme courts are more likely to have enduring impact on [*502] government policy. Hume defines “impact” as “the capacity of state supreme court justices to move formal policy, as well as public opinion, closer to the justices’ revealed positions on particular issue” (p.4). He notes that state supreme courts differ from the U.S. Supreme Court and from one another in ways that influence their impact on government policies. Key differences include: the institutional design of state courts, state constitutional systems, and the political and cultural environments in which state judges reside.
Over the past two centuries, while the basic structure of the federal judicial system remained unchanged, state judiciaries were transformed into more democratic institutions. But an unintended consequence of these reforms is that state judicial systems are less capable of performing what Hume describes as “one of their traditional democratic functions” (p.6), safeguarding minority rights. Hume focuses on the issue of same-sex marriage to show how “courthouse democracy” consistently impeded efforts by gay rights advocates to transform state marriage laws. While LGBT advocates found some initial successes in liberal states such as Hawaii, Massachusetts, and Vermont, in others they ran afoul of two “institutional features [that were] particularly burdensome” (p.7). "First, citizens have been more likely to curb state court activity ...when initiative amendment procedures have been available to them," and second, “judicial elections systems that allowed the voters to hold judges accountable for unpopular decisions” (p.7)
Hume identifies three stages he considers fundamental to judicial policy development: (1) Initiation (a court must be willing to innovate by legalizing same-sex marriage), (2) Legitimation (a decisions must be accepted by relevant policy communities, e.g. other judges, state administrators, the public), and (3) Endurance (a decision must not be trumped by other policies, most notably constitutional amendments).
In Chapter 2, Hume develops his theory of state supreme court impact. He argues that institutional and environmental differences among the states can account for divergent reactions to same-sex marriage decisions. Institutional variations establish the constraints under which state judges operate as well as the resources that would allow these judges to overcome those restraints. For example, unlike federal judges, most state judges lack the institutional protection of life tenure. Another example: many state constitutions are considerably easier to amend than the federal constitution.
Among the most significant environmental constraints is the narrowness of state supreme court constituencies. Unlike the national constituency over which the U.S. Supreme Court presides, state supreme court constituencies can be “more homogeneous and idiosyncratic” (p.51). With respect to environmental influences on the impact of state judges on same-sex marriage policy, Hume emphasizes three: the ideology of the state’s citizenry, the ideology of a state’s political institutions, and variations in the activity of interest groups (particularly LGBT public interest groups and the religious right). [*503]
Part II consists of two chapters tracing the history of state supreme court activity on the issue of same-sex marriage from the 1970s through the (surprising and anomalous) Iowa Supreme Court’s 2009 decision. While important background for what follows, these two chapters may seem somewhat redundant to readers already familiar with works like Klarman’s (Klarman 2012). Hume does, however, pay a good deal more attention to the legal arguments found in the state decisions of this period.
Part III, An Analysis of State Judicial Impact, constitutes the remainder of the book. Hume divides his analysis into three chapters, corresponding to the three stages of judicial policy development outlined in Part I.
Chapter 5 focuses on policy initiation. Hume describes the general characteristics of state supreme courts that upheld same-sex marriage and develops a descriptive typology of these courts. He finds that, to an extent, differences in judicial policy initiation can be explained by interest group activity ‒ most notably, LGBT interest groups who acted strategically in their selection of states in which to pursue litigation (i.e., litigating primarily in states with favorable institutional and environmental conditions). Also important is the difference between appointed and elected judges, with the former more likely to rule in favor of same-sex marriage. In addition, Hume finds that judges with “prestigious reputations” (p.23) are more likely to favor marriage equality.
Hume’s chapter on policy legitimation places strong emphasis on the capacity of state courts to build public support for government policies. While state supreme courts are no more effective that other institutions at increasing public support for same-sex marriage, Hume found that methods of judicial selection help to account for when judges are more effective in building public support. Specifically, Hume demonstrates that the public is more likely to trust appointed judges to deal with issues of same-sex marriage, and less likely to support decisions legalizing same-sex marriages from elected judges.
The penultimate chapter, devoted to policy endurance, evaluates the long-term impact of state courts by studying the enactment of state constitutional amendments restricting same-sex marriage. Hume finds that states with professionalized courts ‒ which have a greater tendency to vote in favor of disadvantaged parties ‒ were more likely to be targeted by amendments, and that states allowing citizens to propose constitutional amendments using initiative amendment procedures (e.g. California and Proposition 8) have tended to approve amendments.
In his concluding chapter, Hume argues that the legacy of the same-sex marriage decisions is mixed. He agrees with critics such as Rosenberg (2008) who stress (spoiler alert) the limitations of judicial intervention. At the same time, Hume is convinced that state courts have advanced the cause of gay rights, noting that “[i]t is hard to imagine that state legislatures would have begun legalizing same-sex marriage in 2009 if state courts had not kicked off a national conversation about marriage equality, transforming same-sex marriage from a pipe dream into a thinkable [*504] policy alternative” (p.193) .
But it is important to remember that any advances that have occurred came about not because of the democratization of states courts and state constitutional systems but rather in spite of them. At least in the area of same-sex marriage (though one suspects relevance to other high profile morality policy issues), the judges who made a difference and produced meaningful social change came from states that provided them with the institutional resources needed to go against majority opinion.
In retirement, Justice John Paul Stevens has been an active commentator and book reviewer. But the late Justice William J. Brennan, Jr. also comes to mind. Brennan (who was elevated to the Supreme Court from New Jersey’s high court), facing a Supreme Court growing increasingly conservative in the 1970s, famously advised liberal interest groups to turn to litigation in state courts (Brennan 1977). One wonders how Brennan would respond to Hume’s many insights into the promise ‒ and perils ‒ of such a course.
Brennan, William J., Jr. 1977. “State Constitutions and the Protection of Individual Rights.” HARVARD LAW REVIEW 90: 489-504.
Klarman, Michael J. 2012. FROM THE CLOSET TO THE ALTAR: COURTS, BACKLASH, AND THE STRUGGLE FOR SAME-SEX MARRIAGE. New York: Oxford University Press.
Rosenberg, Gerald N. 2008. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Second Edition. Chicago: The University of Chicago Press.
HOLLINGSWORTH v. PERRY 570 U.S.___(2013)
UNITED STATES v. WINDSOR 570 U.S. ___(2013)
Copyright 2013 by the Author, Philip A. Dynia