Ari Ezra Waldman | Don't Ask, Don't Tell | Law - Gay, LGBT | News | Proposition 8

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'DADT' and Proposition 8: The Role of the People's Will

BY ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Constitutional scholars love to talk about something called "the counter-majoritarian difficulty." It is a simple problem that plagues any democratic or republican form of government that has a judiciary that is empowered to judge the constitutionality of legislation passed by an elected legislature. The counter-majoritarian difficulty asks how can a society organized around the will of the people, manifested through their elected representatives, tolerate an unelected judiciary that strikes down legislation written by those representatives? We appoint our federal judges to life terms (for good behavior) and hand them the keys to the vault. We elect our members of Congress, they pass bills into law, our elected president signs them, but still, an unelected judge can stand in the way. How is that democratic, just or fair?

Prop8 There is, of course, a simple answer to this problem, first posed by a famous Yalie named Alexander Bickel. While there is an inherent tension between popular democracy and judicial review (the name given to the power of courts to review the constitutionality of legislation), the allocation of judicial review power to the courts expresses what we know to be a judge's best skill. Judges analyze a law's constitutionality outside the political realm, and they do so dispassionately, without regard for party, ideology and personal preference. At least, they do so in theory. Think of what economists call comparative advantage -- a person, group or country focuses on what they do best or most efficiently. Well, judges are best at determining the constitutionality of laws; legislatures are best at reflecting the will of the people. Both have to be done in any orderly society, so we insulate judges from politics and ensure that they can make decisions independent of the popular will.

Some of us may have missed it, but the principles animating the counter-majoritarian difficulty are at play in the two hottest gay rights issues of the day: the repeal of Don't Ask, Don't Tell and the challenge to California's ban on marriage equality in the Perry case. Today, I'd like to discuss the role of the popular will in our quest for equal rights. I argue that the popular will plays a role, but in exactly the opposite way that it should.

Continue reading "The Role of the People's Will" AFTER THE JUMP...

Popular will is relevant to the debate over repealing Don't Ask, Don't Tell in three ways: popular polling, the military survey and Congress. Every poll shows that at least 67 percent of Americans favor repeal of Don't Ask, Don't Tell. Some polls have that number closer to 75 percent. This is a direct reflection of the will of the people.

Sc The Defense Department conducted a survey of military members and their families and asked them their views about the repeal of DADT, whether open service would affect unit cohesion and military readiness and how they would react to repeal. This reflects the popular will of a certain subset of the population deemed to be directly affected by repeal.

And, finally, the debate over repeal is occurring in Congress, the republican manifestation of the will of the people through voting and elections.

Popular will is reflected in the Prop 8 case in three very different ways: popular polling, the Prop 8 initiative and the scope of the district court's ruling and any future Ninth Circuit ruling. Here is the classic counter-majoritarian difficulty.

Polls show growing support for marriage equality, but percentages hover around 45 to 49 percent. The size of that group has grown considerably since 1993, but marriage equality generally still fails to command majority support.

The Perry case is about whether a voter-approved referendum, which passed with approximately 53 percent of the vote, should be overturned because it contradicts the federal Constitution. The prospect that this could happen is precisely what those worried about the counter-majoritarian difficulty do not want to happen.

Finally, the scope of the ruling affects different groups of people. If the ruling only affects two counties in California -- as David Boies suggested at the hearing -- the problem is minor compared to a the prospect of a Ninth Circuit ruling that could potentially affect the entire Ninth Circuit. Admittedly, that is highly unlikely and of dubious legal merit; but, the point remains that any decision will affect different numbers of people.

Why should the will of the people matter? Assuming the popular will has a role, is it necessarily the case that the popular will means more to the repeal of DADT, given that the debate is taking place in Congress, than it does to the overturning of Prop 8, given that the discussion is taking place in a court of law? I think the popular will matters, but not in the way you might expect.

The Prop 8 case gives us the classic counter-majoritarian difficulty. The case asks a court to reject what a majority of Californians voted for in 2008. You would expect, then, that Charles Cooper, representing the proponents of Prop 8, would return to this theme often. And, he did, five times at oral argument before the Ninth Circuit.

You would also expect that this would be irrelevant to gay rights advocates. Admittedly, we did not hear any discussion of polling data from David Boies and Ted Olson; but, we do hear a lot about how marriage equality has support of a majority of Californians and is growing in popularity nationwide.

The question is: Should this matter for either side of the debate? My answer is it shouldn't, but it does. Matters of constitutional rights are meant to be decided by unelected judges insulated from politics for a reason -- their decisions are independent of what the people want. When the Warren Court decided Brown v. Board of Education, the Court may not have been alone on the side of integration, but certainly had about half the country's virulent opposition to contend with.

But, decisions like Brown are rare. Much more common are decisions like Loving v. Virginia, which ended anti-miscegenation laws, and Griswold v. Connecticut, which ended bans on contraceptives for unmarried individuals. These important decisions reflected the will of the people in that by the time the court decided Loving, bans on mixed race marriages had been on their way out for years and had been scarcely enforced. That same was true for bans on contraceptives at issue in Griswold. Connecticut's law was "outdated" and rarely enforced, even according to the state defenders of the statute.

Federal courts are much more willing to wield the sword of judicial review when an aerial bombing campaign has already weakened the enemy. It was easy to decide Loving and Griswold; Brown took courage and daring. But, that kind of courage is not always a good idea. Our courts need a public willing to accept their credibility, lest they risk their decisions being nullified by a sanguine public. The Warren Court took a big risk in Brown -- it played Roulette with the credibility of the Court in the face of a population ready to say, "screw you." It won out, but mostly due to the Eisenhower and Kennedy administrations' willingness to enforce the decision at the point of the National Guard's bayonet.

So, I argue that where you would expect popular opinion not to matter -- a court's determination of our constitutional rights -- popular opinion tends to matter a great deal. In theory, it shouldn't, but let's leave the theoretical world to academics, theoretical physicists and The Chronicles of Narnia.

Soldier As for the debate over repeal of DADT, you would expect that popular will would matter most here; this is, after all, a debate in Congress. But, I argue that it is Congress that has made the popular will almost irrelevant. 

Polls that show vast majorities of Americans support repeal of DADT are great background noise, but it is not clear that they influence anyone other than those progressive politicians who would support repeal no matter what. These majorities have existed for years, but it took a Democratic Congress and a Democratic president to get the issue to the floor. The failure of Republican congresses to raise the issue of repeal despite huge majorities favoring repeal means that something else is going on, or, at least, some other impetus was needed to get repeal off the ground.

Even in Democratic Washington, it took a report about the popular will of service members to push conservative members of the caucus to support repeal. This version of the popular will gave members certain political cover and allowed these wavering politicians to say to voters: "I only support this assuming it is okay with our armed forces." But, that position subjects the rights of one class of citizens to the popular will of an entirely different class of citizens, both minorities in the strictest sense of the word (gays and those who serve in the military are both subsets of the larger population). It is not clear how democratic values are preserved by making support for repeal of a discriminatory law against one minority contingent upon the support of another minority.

And, as many commentators on the left have noted with great gusto, repeal of DADT does not even seem possible in a Democratic Congress. Once again, the epicenter of our political universe is not reflecting the will of vast majorities of the country, which calls into question the weight or important of those vast majorities in the first place.

My argument is that popular will is almost irrelevant in a Congress where 40 senators can stop pretty much anything from happening. Popular will may have changed party control in 2006 and again (in the House) in 2010, but DADT is still with us. And, soliciting the views of military members seemed like a good idea on the surface -- no one wants to jeopardize the effectiveness of our armed forces. But, it is, at a minimum, undemocratic to make service members' views determinative when it comes to repeal. On the repeal of DADT, the Senate is acting like the unelected judge in the counter-majoritarian difficulty -- it has taken the will of the people and the will of the military and rejected them both.

What does this mean for the counter-majoritarian difficulty? If courts are more likely to overturn laws when they have the popular will at their backs and the Senate fails to act despite the popular will at their backs, there is no counter-majoritarian difficulty. The unelected judiciary is arguably more reflective of popular will, even though it need not and often should not be, than the Senate.

Do you agree with me? Has our system been turned on its head? Or, does the counter-majoritarian difficulty still exist in practice?

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Comments

  1. Ari -- Not sure you are right about Loving -- it's a sort of paradox. When it was decided in 1967, there were 17 (?) states with bans. But about 70% of the population opposed interracial marriage. I think that high number came from ignorance and moreover a NIMBY thing. These people didn't their family members to intermarry first and foremost -- the "Guess Who's Coming To Dinner" effect. That plays out differently with marriage equality for gay couples. We're not, to use an old term "mixing", and not threatening their order because we're both gay individuals -- which is why NOM had to invent this new "traditional marriage" meme, that wasn't really in popular culture before. Few invoked "traditional marriage" in the interracial and women's rights debates.

    Posted by: Chris | Dec 15, 2010 12:42:40 PM


  2. Since three of the five heads of service do not buy in on DADT repeal (if that is in fact what is before the Senate) I don't know how you can say the Senate has rejected the will of the military.

    Posted by: JusticeontheRocks | Dec 15, 2010 1:00:46 PM


  3. I couldn't agree more except I think "gay" related issues are just different - as much as it pains me to say that. The fact that it is entirely acceptable for the former president to step out onto the white house lawn to promote a constitutional amendment against same-sex marriage and it is entirely acceptable for people to speak so openly in front of congress and the senate promoting hatred towards gays says "we" as a society have a long ways to go. If you removed the word "gay" and replaced it with black, jew or woman... people would be publicly hung for saying these things. But again, it is acceptable towards gays. What is it about homosexuality that rocks the foundation of our society? Or does it? I suggest people read the Anti Gay Agenda by Didi Herman.

    Posted by: MB | Dec 15, 2010 1:11:34 PM


  4. This is a very compelling argument. I would simplify it slightly, though.

    Having an insulated judicial quite simply ensures the country is not the victim of popular opinion - aka mob rule. The people as a whole are subject to whims of emotion as well as hindered by a lack of overarching knowledge of what makes a society run well. Society is by definition constantly buffeted by the competing interests of the individual. It is up to the judiciary to make sure that one person's (or group's) interests do not dominate and therefore overtly discriminate against a powerless minority. This is especially important since majorities and minorities come and go constantly. Without the protection of an insulated judiciary we would devolve into a tit-for-tat society where there is constant retribution between groups as they gain and lose power.

    Posted by: MT | Dec 15, 2010 1:14:12 PM


  5. @MT:

    You are not incorrect. The only flaw in your argument is that the judiciary (at least on a federal level) discusses what is, or is not, Constitutional - not just what is, or is not, right or just.

    You have to get over the hump of showing that the Constitution forbids things like Prop 8 or DADT before you can argue that judges can ignore the will of the people.

    People hate Scalia, but he is at least very consistent in his arguments that if the Constitution was not intended to protect something at the time a particular part of it was written, then it doesn't protect it. Loving v. Virginia was an entirely different case in the context of the 14th Amendment because the 14th Amendment's purpose was to eliminate laws in the States that treated blacks like slaves and stamped them with a badge of inferiority. The reality is some judges are simply not going to see it as their role to apply the 14th Amendment beyond those types of circumstances and until you can get over the hump of saying, the 14th Amendment protects gays and lesbians from similar treatment under the law as blacks faced, you're not going to be able to argue they can ignore the will of the people.

    Do not take that to mean I'm defending Scalia, or other like minded judges, who feel that way. I am not. Clearly the 14th Amendment has been used in other ways. But the success of that use has always depended on the makeup of the Court at the time the challenge was presented.

    It is interesting that Ari quotes Bickel. Bickel would undoubtedly have thought Scalia is right on most of these issues.

    Posted by: Sam | Dec 15, 2010 1:58:42 PM


  6. Ari: I just want to say that I, as someone outside the legal profession, really enjoy your concise, clear and magnificently written posts here on Towleroad. Every post you write is hugely informative, hugely compelling and hugely appreciated.

    Posted by: TwoNineteenTrain | Dec 15, 2010 2:13:56 PM


  7. Hmmmmm. One could argue that the government's failure to effectively regulate the financial and corporate sectors also reflect congressional defection to a small subset of the larger population. Some might even contend that with regard to those sectors and larger economic and regulatory concerns including the influence over elections that private institutions exert, that all three branches serve at the pleasure of a very small minority of powerful special interests, and that most, if not all other legislative agendas are bread and games, i.e., a distraction--and a damn good one that these concerns are vested in prolonging. One could do that, but would be castigated by others for reasons largely irrelevant to the issue due to the information gap. One could also counter that this is how it has always been...information gap, again. Granted, this isn't the topic, but arguably an example that has a much more far reaching impact.

    The "will" of the people takes longer to penetrate the beltway bubble because of job security reinforced by the fact that this issue will not threaten it if not acted upon swiftly. While the majority is clearly in favor of DADT repeal, it will not suspend a vote for a candidate based upon their lack of support. That's because it is, in practical terms, unmoved by most social issues.

    As to the judiciary's legitimacy being nullified by consistently defying the will of the people, that reveals that a distaste for the notion that we're a nation of laws, not individuals. Which is preferred, because the former notion is incoherent. Well, you're a conservative after all...well, it could be argued a humean conservative, if you're familiar with that.

    Posted by: TANK | Dec 15, 2010 2:50:05 PM


  8. Ari, I'm not sure even the authors of the Constitution really imagined the will of the people would be reflected by their elected representatives. Even then, it must certainly have meant the will of the voters (which was, at the time, what? a third of the people?). I'm sure it's been at least a century more (if not forever) that it's really been the will of contributors and benefactors. If not, why have judicial review at all?

    Posted by: Zlick | Dec 15, 2010 3:01:42 PM


  9. And I'd like to add that history has shown that the right course of action is almost universally never informed by the "will of the people," (as it has nothing to do with it if you believe that propositions containing moral predicates have truth conditions like any other) but what is usually done almost universally is for very predictable reasons. That ethic doesn't work in principle, but practice, and renders most, if not all, amoral...which is pretty much the case. Not bad, not good...self interested.

    Posted by: TANK | Dec 15, 2010 3:03:23 PM


  10. @TwoNineteenTrain: Thanks for the vote of confidence. I appreciate it! Those not "cursed" with a JD are, of course, my target audience. :) Please do not hesitate to make suggestions for future columns.

    @all commentators: Fascinating comments! Keep 'em coming!

    Posted by: Ari | Dec 15, 2010 3:17:04 PM


  11. Nobody every mentions the fact that NOM, which never fails to whine about how the "voice of the people" is being squashed by judicial activists, has filed a suit in Maine to have one unelected federal judge declare Maine's Clean Election law unconstitutional.

    The Clean Election law was passed by popular vote, 54-46% - a margin greater than that of either Prop 8 or Question 1. So NOM has no problem with judges overriding "the people" when it suits their interest. I also note that they have not called for a popular vote in NY or NJ, where they won the legislative battle.

    Factual errors in the above post:

    Prop 8 passed by 52.24-47.76, so it is more fair to say that the margin was 52-48.

    There are polls that show support for repealing DADT in the mid- to high-50 percent range. NBC/WSJ is one, and there are one or two others. Other polls show support for repeal about 15 percent higher.

    Posted by: John | Dec 15, 2010 3:31:09 PM


  12. I disagree with the assertion that the system has been turned on its head. I think that idea ignores the history of the government,. Majoritarian rule may be the case in the House, but it was never like that in the Senate. The Senate, as an institution, was designed to resist popular will--hence each state gets the same two votes despite the size of the state. (I would also take issue with the idea that 40 Senators can block anything. It's really 41. 60 Senators can overturn a filibuster.) When a Senator talk about doing something, it's always for the good of his/her state, not the country.

    With regard to the judiciary, I would say it is still very much a counter-majoritarian institution when it wants to be. With all due respect, Ari, I think you focus too much on civil (i.e. gay) rights at the expense of the larger picture. Citizens United is the definitely a decision from the last term that the vast majority of the country does not support. It's not that the Court sees its role differently, but the current Justices have different philosophies than the previous ones. The Warren Court was more likely to see an expansive view of civil and criminal rights (and everyone always seems to forget how unpopular their criminal cases were) whereas the Roberts Court has a minimalist view of civil/criminal rights and a more expansive view of corporate rights.

    There are also arguments about the role of money in elections producing an even more counter majoritarian government while the judiciary has been composed by a series of Presidents who have fled from the Warren Court's legacy, but have ignored how a Justice would act of less politically charged but equally important constitutional matters.

    Posted by: SolitaryMuser | Dec 15, 2010 5:18:25 PM


  13. It should be noted that judges are always reflecting the will of the people, in constitutional cases.

    When the Californian voters passed Prop 22, the California Supreme Court represented the pre-existing will of the Californian people in the form of the more-powerful California constitution, when they struck down the conflicting Prop 22 law.

    This is why California voters then passed Prop 8, embedding it into the California constitution itself, and why the California Supreme Court then did not strike it down, and why it became a federal case.

    (Frankly, I'm baffled why California voters bother passing mere laws at all, when they could just go directly to constitutional amendments and save themselves a lot of expense... their constitution is already swiss cheese, so it could hardly be made worse).

    The US people's will is embodied in the US constitution. The will of Californians cannot override the will of the US, in matters of equal rights and due process.

    We know the will of the US people, because their representatives had the opportunity (at least twice during the Bush administration, with Republican control of House and Senate) to amend the constitution to ban same-sex marriage, and they chose not to. Most of those representatives were re-elected.

    Posted by: Randy | Dec 15, 2010 8:20:13 PM


  14. We have to constantly work, combat, fight and change with the demands of a new age to create changes we need, but being complacent, thinking "well...who cares if I can't have that" is giving right into segregation. And we are being isolated and segregated from opportunities hetrosexuals experience just based on who we fall in love with, and that is unjust and needs to consistently be attacked!
    Even better than ever...in the coming new years! Let's work as one community, we've done a terrific job of doing this last year!

    Posted by: Daddolfe | Dec 17, 2010 6:31:11 PM


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