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Wednesday, April 29, 2015

"Slogging Through the Likes of Alabama"

In his hopeful post on the oral argument yesterday in Obergefell v. Hodges, Dale Carpenter writes, in an early passage in the post: 

At first, I took Justice Kennedy’s observations to reflect a general methodological Burkeanism that should hang over all of constitutional law. That’s the way Judge Sutton used it. If that’s how Kennedy is using it–if he really means that we should wait-and-see for some indeterminate percentage of millennia before enforcing a principle as constitutional law against vestigial democratic resistance–then it’s time for the gay-marriage movement to put the corks back in the champagne bottles and fire up for a generation or more of legislative slogging through the likes of Alabama.

As I live and teach in the likes of Alabama, I thought I'd add a comment on this. This is another long, below-the-fold post, so I'll offer a summary, which breaks down into three propositions. 1) He's right, of course, in general terms. 2) Nevertheless, there are both generational changes at work here and, especially, a strong streak of libertarian thought among some conservative Alabamans  that, if advocates of LGBT equality spoke to it, would certainly help speed things along in moving toward changes here as elsewhere. 3) So far, regrettably, to the extent that well-funded national-elite LGBT groups have started directing their money and efforts at states in the Deep South, their approach has not been especially tailored to the state; it's just been a local version of the national campaign. One doesn't expect a lot of flexibility and responsiveness from well-heeled DC-centric juggernauts. But it's still too bad. By really listening and adapting their campaigns to those local views that might give them some leverage, they might shorten the "slog." [EDIT: A colleague reminds me that the preferred demonym (a new word for me, I confess) is "Alabamian," not Alabaman; I had some recollection as I was writing that there had been a dispute over which to use and just chose one--the wrong one, alas. I am leaving the error in here and through the rest of the post, partly for the sake of time and partly so that my error, despite my living here for some nine years, can be held against the rest of my analysis if people choose.]

In general terms, of course, Dale is right to think that if the Court does not find a constitutional right to same-sex marriage--I believe it should, and probably will, although it would be nice if the opinion doing so were clean, clear, and legible this time--efforts to arrive at such a right in places like Alabama will be very difficult. The contretemps with the Alabama Supreme Court and the clownish general public statements of Chief Justice Moore demonstrate that clearly. (I distinguish the general public statements, and the language at the end of his initial memo on the scope of the district court's order, from some of the substance of that memo, which, like Howard, I think was probably substantially legally correct, like it or not. Generalized references to the Supremacy Clause or Cooper v. Aaron are not really sufficient here, and I think some of those arguments have been more strategic than analytically sound.)

I assume that Chief Justice Moore is motivated substantially by sincerely held views, but also in part by his knowledge of the fundraising possibilities that his position presents, and in part by a desire for elected office. And if the Court rules in favor of same-sex marriage, I assume he will continue in this vein, at least in his public statements if not in resisting the applicability of the Court's decision, and possibly both. He could stay on the Court and continue in this course; or he could make a show of resigning as a result of the decision and the law it would force him to apply, and then run for governor again.

Either way, there's no doubt that there is a receptive audience here for his actions and outbursts. It's not an Alabama establishment view, I think, or even a Republican establishment view; the conservative Alabama establishment, whatever its views on LGBT rights, tends to disdain Moore. But this is a populist state with a substantial population of religious conservatives, and his election shows that those views can succeed in getting votes here, no matter what the conservative establishment itself would prefer. (Populism is quite popular on the left these days, I must observe parenthetically. I don't share that affection. Living in Alabama is not the reason why; I have never been much of a populist. But it sure helps.)

Public views on gay rights and gay marriage have, of course, shifted incredibly in this country in the past few years. That has been to my great satisfaction, even if I have mixed feelings about those Democratic politicians who have now found it convenient to talk about the "evolution" of views that they once offered publicly, simply because winning office was more important to them at the time than publicly and forcefully championing the equal dignity of gays and lesbians. But Dale is right that those changed views don't yet represent the majority view in a number of states in the Deep South, including Alabama. If, as someone who makes his home here and knows a little about its nuances and complexities, I bridle at talk of "the likes of Alabama," I certainly cannot say he is wrong, and I can hardly blame him for feeling that way. As with the struggle to recognize basic civil rights in the wake of Brown, this will be an uphill battle, especially if the Court does not recognize a right to same-sex marriage but probably in any event.

But I would like to say a word about the Alabamans I have encountered in my constitutional law classes. There is some danger in characterizing their views based on statements in class, especially because a) I urge students to focus on the legal issues first and foremost, not the politics or their general policy views and b) knowing that many students here shy away from talking about hot-button issues, I certainly encourage them to explore different views or take a devil's advocate position, whatever their own views are. Nevertheless, I've been at it a while and can say something about prevalent lines of thought among my students.

What I would say is that there is a strong libertarian streak in their views. It expresses itself in various ways; in some cases directly, in some cases indirectly through their views on federalism. They do not, by and large, care for a case like Wickard v. Filburn, or for the Court's later decision in Gonzales v. Raich. They do not categorically disdain federal power, but they think it has real and judicially enforceable limits. And, consistent with libertarian views, they think Raich came out as it did in part because of a regrettable attachment to the war on drugs. But their libertarian views, as well as simple generational changes in view about LGBT people and rights, are also reflected more directly in their views on individual rights. That most certainly includes the issue of same-sex marriage. In addition to general generational views about the fundamental equal dignity of gays and lesbians, they also think of marriage essentially as no one else's business but that of the couple in question. If the Court rules as many of us would like, they will be delighted, any federalism issues notwithstanding.

I make no extravagant claims and should offer appropriate caveats. Many of my students come from outside Alabama or are Alabamans who have lived elsewhere before returning for law school. The Alabaman students are not all conservative, and not all the conservative law students are religious conservatives. Simply by virtue of the fact that they are seeking post-graduate degrees, they are (as in most states) not a representative sample of the population. And those students who are religious conservatives are less likely to speak out in class about social issues.

Nevertheless, I think the libertarian streak I have suggested here is genuine. It does not represent all Alabaman views or all views of Alabaman conservatives. But it does represent a real and substantial view. If I were seeking to alter views here, or just to splinter conservative views and find avenues to push along receptiveness to same-sex marriage and LGBT rights in a conservative state like this one, that's where I would aim my efforts. It would not capture the majority. But it would find a receptive audience within that majority. Fewer people might be convinced that marriage is no one else's business but the couple's; but more of them, given their views of government, would be convinced that it's more the couple's business than the state's.

As I noted at the top of the post, national LGBT groups have in the last couple of years begun moving their efforts slowly into the Deep South and other such states. I certainly encourage more people here to learn about and get involved with groups like Equality Alabama, which are often staffed by people who were born and raised here, even if they then moved elsewhere. But there is a difference between national groups moving into states in the Deep South and having those groups actually tailor their efforts to the views and circumstances of those states. Based on what I've seen of ads and similar efforts funded by national groups and aired here (or, really, aired on the Internet but ostensibly aimed at these states), there has been relatively little effort to do so. The ads still have a substantially national flavor, not a local one. They feature local people, but they don't tailor the message much, other than being more assiduous about sprinkling in references to God. This may be a religious state, but I doubt that a religious message would get as much traction here as a libertarian one would.

If I were working for those groups, I would aim my efforts at finding and exploiting the seam between different conservative orientations in this state, and emphasizing the dangers of allowing the state to control individual lives and decisions. Again, I don't think this represents a majority view in Alabama. But I think it would help some Alabama conservatives to frame their own arguments, and reassure some Alabama conservative politicians that there might be more than one way to appeal to local sentiment, or at least to quietly take a less restrictive or punitive view without suffering as much political harm. It would not be the key to immediate change. But it might make that "slog" shorter and easier. Unfortunately, national groups, which have, and jealously maintain, a lock on massive sources of cash, tend to think more in terms of their own worldviews than in terms of the ones they find and face on the ground far from the capital. Their own views are not especially libertarian in nature.

I'm not sure just how interested those national groups really are in achieving headway in states like this; they say they are and they have devoted some resources to that effort, but not a huge amount and not with much evidence of real sensitivity and adaptability. God knows we could use the help. Despite the very different picture I get here in a university town, which is much more optimistic, stories of young LGBT individuals in the state and their individual experiences can be harrowing. It would therefore be nice if that help were aimed at finding and making use of views on the ground, which here are less likely to be voiced in high-blown dignitarian terms and more likely to have to do with libertarianism and distrust of government interference in personal lives. If they are serious about helping, and about reducing the length and difficulty of the slog, I hope those groups will put a little more emphasis on this approach.      

[One further editorial note, since I have closed comments. A colleague has responded that he or she thinks that "strong" libertarian streak is not that strong, and certainly less so than in other states. I appreciate the response and certainly am happy to make note of it. I would say to that: 1) I think it's right that using the word "strong" was an error here. I certainly agree that there are states with much stronger libertarian sentiments. 2) That said, I have certainly seen and been struck by this strain here, and among my conservative students. (It is because it is striking to me, and voiced more often than, say, social conservative views, that I used the word "strong.") As I said in the post, I don't think it represents the majority view among Alabamian conservatives. But I think that making use of it would be more useful--would have more chance of reaching some Alabamian conservatives and creating at least a bit of a wedge--than just transplanting the national campaign here. If the comparator state is Nevada or Alaska, then yes, Alabama isn't much of a comparison in terms of libertarian sentiment. But it does OK compared to the amount of libertarianism in the places where I went to law school or practiced law, and it is those places whose worldviews inform the national campaigns, not Alabama or Alaska. At a minimum, a state-level campaign in such a state should be focused on reaching conservatives, not talking to other blue dots.   

Posted by Paul Horwitz on April 29, 2015 at 11:43 AM in Paul Horwitz | Permalink


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