Ely at the altar: political process theory through the lens of the marriage debate.

• Author: Schacter, Jane S.
• Position: John Hart Ely

Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, recent trial in federal court on the constitutionality of California's Proposition 8, which featured extended testimony by opposing political scientists on gay and lesbian political power. The Article argues that the marriage debate reveals deep conceptual problems with process theory as it has been conventionally understood, and that looking at the theory through this lens can point the way to refashioning it in both doctrinal and conceptual terms. It calls for a more substantive and nuanced conception of democratic equality, as well as a more realistic institutional understanding of courts and the political process.

TABLE OF CONTENTS INTRODUCTION I. A BRIEF TOUR OF PROCESS THEORY A. Foundations of Process Theory B. Courts and the Political Powerlessness Factor 1. Doctrinal Evolution in the Supreme Court 2. Sexual Orientation and Political Powerlessness in Supreme Court Opinions 3. Same-Sex Marriage Cases in State Supreme Courts 4. The Prop. 8 Trial: The Experts Face Off II. ASSESSING PROCESS THEORY THROUGH THE LENS OF THE MARRIAGE DEBATE A. Missing Metrics, Missing Values B. Institutional Caricatures III. IMPLICATIONS: MAPPING A ROAD TO FOOTNOTE 4.1 A. Doctrinal Reform B. Equality and Democracy Reconsidered CONCLUSION INTRODUCTION

John Hart Ely's Democracy and Distrust (1) and the iconic footnote four in United States v. Carolene Products (2) ("footnote four") are the most well-known exemplars of a genre of constitutional theorizing that goes by the name of "political process theory." This approach has given constitutional law a simple, but central, principle of institutional architecture: the idea that a court's ability to override a legislative judgment ought to be calibrated based on the fairness of the political process that produced the judgment. Stated at a high level of generality, the theory has a long lineage, traceable to, among others, McCulloch v. Maryland. (3) In its contemporary form, however, the principle has been most prominently associated with the more specific idea that judicial scrutiny should increase when a socially subordinated group cannot compete fairly in the political process. That version of the idea was famously framed in terms of "discrete and insular minorities" in footnote four, (4) and was raised to a new level of scholarly prominence by

Ely's theory of representation reinforcement. (5) The process-based logic of the argument has been offered as an appealing way to operationalize equal protection guarantees without dragging courts into endlessly contested debates about substantive values and ideas.

Ely's book has celebrated its thirtieth year in print, and footnote four is well past its seventieth birthday. Despite the passage of time, however, political process theory remains a subject of academic fascination. It is a staple of constitutional law casebooks and classes, and thousands of law review articles have cited Ely or footnote four. (6) Perhaps process theory lingers because of the sheer elegance of the idea that majoritarian malfunctions rightly demand a nonmajoritarian correction. Or perhaps the longevity is better attributed to the magnetic normative appeal of a principle that is grounded in fairness, dispenses with the need for elaborate institutional analysis, and claims to resolve the countermajoritarian difficulty--all without breaking a sweat. Not bad for an idea that can be stated in a sentence or two.

The canonical status of the idea notwithstanding, however, an earnest observer could be forgiven for concluding that process theory has not turned out to matter all that much in constitutional theory or law. Its signature claim--to be about process and not substance--has long since been eviscerated. In the same year that Ely's book appeared, his then-colleague Laurence Tribe published a fairly devastating takedown of the idea that process theory could deliver on its eponymous promise to eschew controversial substantive questions. (7) Tribe argued that "[t]he process theme by itself determines almost nothing unless its presuppositions are specified, and its content supplemented, by a full theory of substantive rights and values--the very sort of theory the process-perfecters are at such pains to avoid." (8) This critique went squarely to the heart of process theory, and other scholars offered powerful critiques of their own. (9)

Moreover, there is little evidence that process theory has powerfully influenced constitutional decisions. Footnote four, and Ely's embrace of it as an aspect of representation-reinforcement theory, (10) show up most clearly in the law of equal protection. In that context, the Court has traditionally pursued separate tiers of scrutiny in analyzing governmental classifications. One of the several factors that the Court has identified as relevant to determining whether a group merits special judicial solicitude is whether the group has been relegated to "such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." (11) Notwithstanding the prominent doctrinal place occupied by the idea of political powerlessness, however, it has mostly fizzled in the case law. In those cases in which the Supreme Court has adopted a standard of heightened scrutiny, it has almost never made a finding of political powerlessness. (12) Indeed, the cases raising scrutiny in the areas of race and gender do not even invoke the idea of political powerlessness. (13) Moreover, the use of strict scrutiny to strike down affirmative action programs challenged by whites has called sharply into question the notion that such scrutiny is plausibly connected to protecting groups lacking power in the political process. (14) And the Court has not, in any event, heightened scrutiny for any new classification in decades. (15)

Notwithstanding these signs of dormancy, if not decimation, process theory seems to have made something of a splashy comeback in one of the most salient socio-legal debates of the day--the debate over same-sex marriage. The question whether members of the lesbian, gay, bisexual, and transgender ("LGBT") community are candidates for heightened scrutiny under equal protection principles has been framed as a central question in many lawsuits on the issue, and the "political powerlessness" idea has drawn sustained analysis. (16) As they have applied state law analogues of the Equal Protection Clause, several state supreme court opinions--on both sides of the marriage question--have probed the question whether LGBT persons lack political power in the ways deemed significant by process theory. (17)

More recently, the issue came to the fore in Judge Vaughn Walker's courtroom, as part of the high-profile trial on the constitutionality of California's Proposition 8 ("Prop. 8"), a measure that reversed a state supreme court decision in favor of marriage equality. (18) In August 2010, Judge Walker ruled Prop. 8 unconstitutional under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. (19) He did so after holding a twelve-day trial at which several witnesses testified on questions raised by conventional equal protection doctrine, including the history of discrimination against gay people, the origins of sexual orientation in individuals, and the extent to which gay people do (or do not) possess sufficient political power to protect themselves in the political process. (20) The testimony offered on the absence or presence of gay political power was especially striking. It pitted two political scientists against one another--Gary Segura of Stanford for those challenging Prop. 8, and Kenneth Miller of Claremont McKenna for those defending it. (21) Over the course of many hours and more than 600 combined pages of trial transcript, the dueling experts debated in great detail the quality and quantity of gay political power, with Segura emphasizing the gay community's political vulnerabilities and Miller its political strengths. (22) Notably, the proponents of Prop. 8 elected to offer only two witnesses at the trial (as against the plaintiffs' seventeen), and one of them was on the political power question. (23)

In his lengthy opinion, Judge Walker parsed the testimony on political power at length and ultimately found the prerequisites for heightened scrutiny to be satisfied. Nevertheless, he also found that even the more minimal scrutiny of rationality review was not satisfied in the case of Prop. 8, and he struck down the measure on that basis. It thus remains to be seen whether and how the evidence on political power will figure in appellate decisions on the constitutionality of Prop. 8. Whether or not this testimony takes center stage in that case, however, it is likely that questions about gay political power in particular, and process theory in general, will persist in the same-sex marriage debate. That debate has long been characterized by a sharp clash between the courts and the political process. It was a court--the Hawaii Supreme Court--that ignited the current controversy in 1993 with a decision portending the imminent legalization of same-sex marriage in that state. (24) Since then, the controversy has been shaped and structured by the ongoing actions and reactions of courts, legislators, and voters acting on ballot measures. (25) Seven...