Should Democrats Move to the Right on Cultural Issues?
Lessons of the 2004 Presidential Election and the Civil Rights Movement

By MICHAEL C. DORF

Wednesday, Nov. 10, 2004

In the wake of President Bush's victory at the polls last week, Democrats are scrambling for a strategy that does not give Republicans a substantial head-start in the Electoral College.

One approach would focus on the large bloc of religious conservatives who vote Republican because of the parties' respective positions on such cultural issues as abortion and gay rights. A more conservative stance on these questions would, according to some, enable the Democrats to appeal to these voters.

The economic interests of red state voters, according to this argument, should make them receptive to Democratic policies on taxes and social programs. Yet many of them won't vote for Democrats because they rank traditional moral values as more important than economic issues. But, we are now told, Democratic candidates can woo social conservatives by reversing the Party's stance on the culture war.

The courts play a central role in the argument that the Democrats should retreat on social issues. This year, propositions banning same-sex marriage were on the ballot and approved by voters in eleven states, including Ohio. Such ballot initiatives responded to the Massachusetts Supreme Judicial Court's 2003 decision in Goodridge v. Dep't of Public Health, holding that same-sex marriage was protected under that state's constitution.

Although Senator Kerry said that he opposed legal recognition for same-sex marriage, he also said that he thought it was a matter best left to individual states. In contrast, President Bush backed a federal constitutional amendment barring same-sex marriage. Voters for whom opposition to same-sex marriage was important thus felt that the President's position was much closer to their own.

Accordingly, some Democrats who hope to appeal to religious conservatives in future Presidential elections advocate a change not only in the party's position on social issues, but also in its position on judicial appointments. They suggest that far from favoring only liberal nominees, the smartest Democratic strategy may be to give the Bush Administration what it wants: Conservative Justices who will vote to overturn Roe v. Wade and Lawrence v. Texas (the 2003 decision invalidating a law barring same-sex sodomy). For if a new "Bush Court" tilts far enough to the right, it will remove crucial wedge issues from the Republican arsenal, and thereby strengthen the appeal of the Democratic agenda.

Yet the proposed strategy is unsound. It sacrifices core principles for expedience, and erroneously assumes that opinions on social issues are immutable. As the Civil Rights Movement shows, liberals do best by defending, rather than compromising, their values.

Why Judges Sometimes Legitimately Follow Election Returns

It is no secret that, in the words of Finley Peter Dunne's satirical Mr. Dooley, "th' supreme court follows th' iliction returns." And in many cases there is nothing wrong with that.

After all, some constitutional tests make express reference to popular opinion. For example, the Court has interpreted the Eighth Amendment's ban on cruel and unusual punishments as turning on the "evolving standards of decency that mark the progress of a maturing society." Judges can and should consult public opinion--as measured in part by election results--to determine what society's standards are, and how they are evolving.

Likewise, in deciding whether a claimed "unenumerated" right--i.e., one that is not expressly spelled out in the text of the Constitution--receives protection, the Court asks whether the putative right is "deeply rooted in this Nation's history and tradition." For some conservative judges, this inquiry is entirely backward-looking: If, for example, abortion was not a protected right when the Fourteenth Amendment was adopted in 1868, then, for these "originalists," that right cannot be deemed "deeply rooted" today.

Liberal judges, by contrast, believe that traditions evolve over time. So they might hold, for example, that the history and tradition that disapproved of interracial marriage had, by 1967, when the Supreme Court decided Loving v. Virginia, given way to a new tradition in which the state has no business telling people not to love those of different races. And they might deem that new tradition "deeply rooted" as a moral commitment, even if its historical roots did not extend back to the country's founding or to the Reconstruction Era.

But even liberal judges would be hard-pressed to argue for an unenumerated right that the people did not accept when the Fourteenth Amendment was adopted, and still do not accept today. Even if, for some brief period, it appeared that a majority of the country supported the putative right, a liberal judge would still not be able to rely on either a longstanding or modern tradition in favor of that right.

Accordingly, a liberal judge who would otherwise be inclined to recognize a constitutional right to same-sex marriage could legitimately take account of current popular opinion in deciding that the Constitution is best read as not containing such a right--or at least not yet containing such a right.

Constitutional Meaning is not Simply a Matter of Public Consensus

Yet public opinion is not all there is to constitutional interpretation. There is also the Constitution's text, as well as precedent.

Suppose a judge thinks that the Constitution's Equal Protection Clause is best read to protect a right of same-sex marriage. The judge might reason as follows: The Loving case says the state may not limit whom a person can marry based on race;

classifications based on sex, like classifications based on race, are presumptively impermissible; and thus, by close analogy, it follows from Loving that the state also may not limit whom a person can marry based on sex.

What should the judge do, however, when confronted with the fact that most Americans oppose same-sex marriage? She might conclude that with respect to marriage, race and sex are not analogous. Or she might decide to give very careful consideration to the arguments offered against same-sex marriage.

But what if, after listening to those arguments, she still thinks that the case against a constitutional right of same-sex marriage is extraordinarily weak? What if she thinks (as I do) that these arguments boil down to the tautological assertion (rather than a reasoned argument) that marriage is, by definition, an institution between a man and a woman?

In other words, suppose that after giving due deference to popular opinion, a judge still concludes that the best reading of the Constitution requires a result contrary to popular opinion. Is there any justification for that judge in choosing the popular outcome rather than the one that she believes the Constitution requires?

As I understand the argument now being put forward by pundits who would have Democrats forage for votes among evangelicals in the red states, the answer is yes: Judges, they say, should rule against rights such as same-sex marriage, in order to avoid a backlash at the polls. Judges should, in other words, commit the very sin of judicial activism of which they are so frequently accused: Refusing to interpret the law that exists, but instead shaping the law as they wish it to be for extraneous purposes--and for the most nakedly partisan reasons.

The Desegregation Precedent: This Argument Has Been Made Before

That argument is extraordinary. Do we really want our judges to cave to political pressure? Should a judge impose a death sentence on an unpopular but innocent defendant simply because she fears that setting him free would lead to a riot? The whole point of judicial independence is to enable judges to resist, rather than succumb, to political pressure.

Nonetheless, the argument that the courts should decide cases in a way that avoids a political backlash is hardly unprecedented. In 1954, when the Supreme Court decided in Brown v. Board of Education that the Constitution prohibits de jure racially segregated public schools, many of the Justices worried that their decree would be disobeyed; some even feared a second Civil War. These worries led them a year later to order the dismantling of racially segregated schools "with all deliberate speed," rather than immediately.

The Justices hoped that by giving local school boards throughout the South (and parts of the North) time to accommodate the new legal regime, they could ease the transition from segregation. But in fact, the effect was nearly the opposite. In leaving recalcitrant segregationists room to evade the letter and spirit of the Brown ruling, the Court invited a campaign of "massive resistance."

To its credit, the Court did not back off and eventually dispensed with "all deliberate speed." In response to over a decade of deliberate foot dragging, the Justices finally wrote, in the 1968 case of Green v. County School Board, that a school board sued for racial segregation must "come forward with a plan that promises realistically to work, and promises realistically to work now."

Yet if the type of advice now being offered had been heeded by liberal judges of the 1960s, the courts might have abandoned the project of dismantling American apartheid.

After all, then, as now, Republicans were scoring electoral gains by campaigning against liberal judges. In 1964, even in the midst of a nationwide Democratic landslide, and for the first time in several generations, the deep South voted Republican; and in 1968 Richard Nixon successfully launched his "southern strategy" for winning the Presidency.

What the Desegregation Precedent Shows: Attitudes Can Change

Today, as in the 1960s, to abandon the deep principle of human equality for electoral success would be, well, unprincipled. Liberal Democrats are not liberal as a calculated means of keeping the Democratic Party in power.

Rather, they--or to put my cards on the table, I should say "we"--are Democrats because we are liberal; we are not liberals because we are Democrats. So if the Democratic Party abandons its liberal principles simply to become a copy of the Republican Party, we liberals will have to find (or create) some other party.

Luckily, however, liberal Democrats need not choose between constitutional principle and political self-interest. Indeed, principle and political self-interest ultimately go hand in hand. Here, again, the example of race is instructive.

It turned out that Americans' attitudes towards race were not immutable. By sticking to principle, liberal champions of racial equality convinced people who, by today's standards, were clearly racists, to change their beliefs. Today, the very people (and the children of the very people) who, forty years ago, fought federal civil rights legislation as an unwelcome intrusion on their right not to associate with African Americans, take that legislation for granted.

In debates over affirmative action and gay rights, all sides now begin from the starting point that deliberate race discrimination is an unalloyed evil--a position that was itself hotly contested not all that long ago.

Don't get me wrong. I do not mean to suggest that America has fully overcome its legacy of slavery and segregation. Some Republican operatives' brazen use of Ku Klux Klan tactics to suppress the black vote in the election just concluded shows that we still have a long way to go. But we have also come a long way in the last five decades--thanks in no small measure to the fact that civil rights activists fought, rather than accommodated, racial prejudice.

Are Religious Attitudes Different From Racial Attitudes?

Why can't liberals make the same sort of progress in convincing others to support them on issues like gay rights and abortion?

One might think that attitudes about these subjects would be harder to change than attitudes about race because they are rooted in religious doctrine in a way that attitudes about race were not. Yet that is simply wrong.

Religion was used extensively to support racism during the time of slavery and segregation. American apologists for slavery often claimed that black Africans bore the "curse of Ham," the son of Noah from whom the Bible suggested they descended. Likewise, segregationists frequently invoked Biblical verses for the conclusion that God intended the races to remain separate.

When slavery and segregation respectively ended, mainstream churches simply changed their teachings, emphasizing different Biblical verses or interpreting the same ones differently.

Conversely, religious doctrine regarding contemporary social issues is not necessarily the driving force behind the attitudes of persons of faith regarding those issues. It is true, of course, that the Bible condemns homosexuality, even to the point of prescribing the death penalty. But the Bible also prescribes death for other activities--such as gathering wood on the Sabbath--that do not seem to exercise contemporary fundamentalist Christians.

One strongly suspects that if and when liberal arguments for full equal rights for gays and lesbians gain the support of a critical mass of the public, religious doctrine will follow suit, just as it did with racial equality.

To be sure, abortion is a harder case, but not because religious texts are any less equivocal. On the contrary, even the Catholic Church did not fully settle on the position that "ensoulment"--the process by which the soul enters the body--occurs at conception, until the last several hundred years. For centuries before that, many Christians followed Aquinas (who himself followed Aristotle) in the view that early abortion was permissible.

The reason that abortion seems a harder case is that there are good secular reasons to think abortion is immoral. Abortion, after all, is the deliberate destruction of a developing human fetus. Regard for human life need not be justified theologically. And accordingly, if pro-choice Americans find it difficult to change the minds of pro-life Americans, it will not necessarily be because of religious differences.

Legislators, Too, Should Hold Fast To Principles

The foregoing considerations lead to the conclusion that liberal judges should generally interpret the law as they best understand it, regardless of the political fallout. If judges, after giving due regard to public opinion, nonetheless conclude that the law protects gay rights, abortion, or any other politically charged right, they should not opine otherwise simply to avoid a backlash at the polls. To do so would be not only unprincipled, but likely ineffective as well.

What about liberal legislators who must win re-election to advance any of their agenda? Should they tack to the right on social issues or judicial appointments in an effort to win the hearts and minds of red-state America? Here, too, the answer is no.

The very argument I gave regarding racial equality in the courts applies equally, if not with greater strength, to politicians. After all, Brown v. Board of Education by itself did little to end Jim Crow in America. Brown's great contribution was to help catalyze a civil rights movement that gave rise to federal (and state) legislation. Persistent commitment to the principle of racial equality by legislators--not only by judges--paid off in the progress we as a society have made.

The Error of Appeasement--and the Ease of Finding "Wedge" Issues

Moreover, appeasement is ultimately a sucker's game. No matter how far to the right Democrats move on social issues, Republicans can always go just a bit further. And voters who care about these issues will be able to discern which candidate will really go to bat for them. No matter how many times John Kerry told voters that as a former altar boy, he respected religious faith, "values" voters knew that George Bush shared their faith.

Finally, suppose that appeasement somehow could work, and that Democrats could neutralize the Republican red-state advantage by capitulating to the Christian conservative view of the world. That still wouldn't assure the Democrats of the Presidency or control of Congress. It is folly to think that skilled political opportunists like Karl Rove could not find other wedge issues.

Perhaps Rove and other strategists like him would revert to their old tactic of accentuating racial division. Or maybe, as during the Cold War and in the campaign just concluded, they would question the patriotism of anyone less hawkish than the most aggressive of hawks.

Whatever tactics were deployed, Democrats would find themselves having sacrificed their most cherished principles for little in the way of an electoral reward.

In the end, then, the question is not: How can liberals appeal to the values held by Christian conservatives? The very effort to do so is self-defeating.

The question is, instead: How can liberals make the case for the values that we hold dear?

In my view, this is an eminently achievable goal. Liberal ideals--including equal dignity and respect, freedom from government interference in the most private matters, and of course the right to free exercise of religion--are attractive ones, if only we bother to articulate and defend them.

Liberal Democrats should stand and fight, not transform their party into Republican Lite.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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