BELOW THE RADAR: HOW SILENCE CAN SAVE CIVIL RIGHTS. By Alison L. Gash. Oxford and New York: Oxford University Press. 2015. Pp. xx, 205. $45.
Scholarship and popular writing about lawsuits seeking broad social change have been nearly as contentious as the litigation itself. In a normative mode, commentators on the right have long attacked change litigation as imperialist and ill informed, (1) besides producing bad outcomes. (2) Attacks from the left have likewise had both prescriptive and positive strands, arguing that civil rights litigation is "subordinating, legitimating, and alienating." (3) As one author recently summarized in this Law Review, these observers claim "that rights litigation is a waste of time, both because it is not actually successful in achieving social change and because it detracts attention and resources from more meaningful and sustainable forms of work such as mobilization, political lobbying, and community organizing." (4)
Several particularly influential studies eschew the clear ideological position of the works just referenced; they offer what they claim is a purer empirical grounding for the conversation. These studies highlight backlash, purporting to demonstrate that many landmark decisions--among them, the U.S. Supreme Court's Brown v. Board of Education and Roe v. Wade, the Hawaii Supreme Court's Baehr v. Lewin, and the Massachusetts Supreme Judicial Court's Goodridge v. Department of Public Health--have turned out to be not merely inefficacious but counterproductive, harming the very causes they aimed to assist because of the countermovements they provoked. (5)
But rights lawsuits have their defenders as well, among both advocates and scholars. (6) Many of these defenders agree with lawsuit critics that "activists and analysts" err, badly, if they assume "that litigation can evoke a declaration of rights from courts; that it can, further, be used to assure the realization of these rights; and, finally, that realization is tantamount to meaningful change." (7) To use Professor Scheingold's phrase, these assumptions are tantamount to a "myth of rights" (8)--and, like so many myths, this one does not reflect reality. A much more fruitful frame, Scheingold writes in his classic treatment, focuses on "the politics of rights," (9) in which a right recognized by a court is "best treated as a resource of uncertain worth" whose "value ... will ... depend in all likelihood on the circumstances and on the manner in which it is employed." (10) Accordingly, rights lawsuits--and the "cause lawyers" who bring them--can improve the welfare of their intended beneficiaries, by using litigation as a piece of a more comprehensive political strategy.
Continuing to quote Scheingold (but it could be any of a small library of consonant analyses), litigation and the rights it aims to vindicate are productive only if "useful for redistributing power and influence in the political arena." (11) This can occur if litigation is used for "political mobilization and ... in this way affect[s] the balance of forces." (12) Introducing data from her interviews with dozens of leading public interest lawyers, Professor Rhode explains:
Part of the reason public interest groups have relied heavily on lawsuits is because they can sometimes mobilize such [financial and popular] support and because other options are less available.... As research on social movements makes clear, lawsuits can help frame problems as injustices, identify perpetrators and responses, and reinforce a sense of collective identity, all of which build a political base for reform. (13) Rhode further summarizes: "In describing their most effective strategies, public interest leaders most often mentioned, in addition to impact litigation, coalition building and communication." (14) And indeed, studies of the varied practices of advocates for whom litigation is an important tool find that litigation remains attractive to those advocates in large part because lawsuits provide a public focal point for organizing, possessing a "unique ability ... to attract resources and publicity." (15)
In Below the Radar: How Silence Can Save Civil Rights, Alison L. Gash (16) adds a key insight into the mix--and in the process demonstrates that litigation theory needs substantially more sophistication to catch up with smart lawyers. Sometimes, she argues, civil rights advocates and clients succeed not by using litigation to organize or mobilize movements, but by stealth--by keeping their cases quiet, "below the radar" of public notice and therefore of opposition. Gash develops two case studies to undergird the theoretical point. The first deals with parenting-equality advocacy on behalf of gays and lesbians, the second with group homes for people with disabilities or recovering from addictions. Each is interesting on its own, and each is well told. Gash doesn't just summarize existing evidence; she interviewed dozens of advocates, and these form the core of her account. In addition, Gash conducted several very illuminating media-analysis studies.
Part I of this Review addresses the parenting-equality case study. I summarize Gash's account and add to it the cautionary tale of the 2002 failure of stealth parenting-equality advocacy in Michigan. Part II addresses, more briefly, Gash's group-home study. In Part III, I put Gash's theoretical contribution into context. Her important and original contribution is her claim that civil rights litigation can succeed quietly, not just loudly. In evaluating this claim, I suggest that she might usefully have addressed the issue of whether stealth advocacy is really a subset of a broader category of efforts to first alter social facts on the ground, and then play defense to preserve that alteration.
THE FIGHT FOR PARENTING EQUALITY
Gash compares parenting-equality litigation to a more familiar struggle--for LGBT marriage equality. The basic contours of the same-sex marriage saga are familiar to anyone who has been paying attention for the past twenty years. In the 1970s and 1980s, a number of gay and lesbian couples attempted to get married, but failed. Even the few who succeeded in obtaining marriage licenses from cooperative county clerks were unable to exercise the ordinary rights concomitant with marriage. For example, Gash recounts the episode underlying an early litigation loss in which an American's visa application for his husband was denied--notwithstanding their Colorado marriage license and ceremony--with a letter from a federal immigration official that stated, "You have failed to establish that a bona fide marital relationship can exist between two faggots." (17) Scattered litigation efforts were equally unavailing. (18) But that changed in 1993, when the Hawaii Supreme Court took a step toward marriage equality, holding in Baehr v. Lewin that under the Hawaii Constitution, a ban on same-sex marriage would pass muster only if the state could demonstrate "(a) the statute's sex-based classification is justified by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgments of the applicant couples' constitutional rights." (19) Along with a remand to the state trial court, to determine if such a rationale existed, came a "tsunami of opposition" nationwide (p. 193).
Under the Constitution's Full Faith and Credit Clause, (20) marriages lawfully celebrated in any state are presumptively valid in any other state, absent contrary congressional action. (21) Hawaii allows nonresidents to marry; there's no need even to spend a few days at the beach waiting for a license. (22) So had Hawaii's same-sex marriage ban failed on remand, (23) any same-sex couple could have traveled to Hawaii to marry and then demanded--and plausibly, if not certainly, received--recognition of that marriage back home. Gash quotes a pro-LGBT activist who explains that this possibility was extraordinarily threatening to same-sex marriage opponents: "There was this threat that we didn't encounter with other issues. It's like a virus. If you let Hawaii [sic] then all gays everywhere can marry. If you allow it anywhere you allow it everywhere" (p. 62).
And so opponents responded. They passed the federal Defense of Marriage Act ("DOMA"), which both defined "marriage," for federal purposes, as "meaning] only a legal union between one man and one woman as husband and wife," and authorized states to deny full faith and credit to same-sex marriages recognized in other states. (24) And in state after state, the opponents passed either statutes or constitutional amendments--or both--barring same-sex couples from getting married. (25)
Thus in the years following Baehr, same-sex marriage looked to many observers like a clear object lesson about the limits of rights litigation. "Simply put," gay rights scholar John D'Emilio wrote in 2007, "the marriage campaign has been a disaster." (26) Rosenberg, for his part, scolded LGBT advocates for their overreach:
Ultimately, the use of litigation to win the right to same-sex marriage lends further support to the argument that courts are severely limited in their capacity to further the interests of the relatively disadvantaged.... [S]uccumbing to the "lure of litigation" appears to have been the wrong move.... [A]fter 1996 it was clear that any further litigation victories would produce continued backlash.... By litigating when they did, proponents of same-sex marriage moved too far and too fast ahead of the curve, leaping beyond what the American public could bear. The lesson here is a simple one: those who rely on the courts absent significant public and political support will fail to achieve meaningful social change, and may set their cause back. (27) But Rosenberg was wrong; in fact, by the time he wrote that paragraph, the tide had turned.
DOMA delivered a hard kick in the gut to LGBT equality. But it had one useful side effect for marriage-equality...