Social Movements: The Platinum Card of Social Change

At Balkinization, Mark Graber offers what he calls "a different take on Kim Davis." (And thank goodness. I cannot say that the stories and FB posts that have made their way into my media feed have been especially illuminating.) His short take: "Put more broadly and more polemically, the fuss over Kim Davis demonstrates that the Constitution of the United States remains an effective means of combatting governmental policies that inflict stigmatic harm on members of the upper-classes, but a far less effective means of combatting government policies that inflict material deprivation on the lower classes."

Of course this seems true to me. I would add three caveats and one more point that seems to me to be a natural next step to his argument. It is certainly fair to say that marriage is hardly limited to the upper classes, but he is right that it is generally essential that the stigmatic harms also be suffered by the upper classes to gain traction. It is also fair to say, and some advocates for concentrating on same-sex marriage argued along the way, that the SSM movement has or will realize many indirect benefits for gays and lesbians--call them "trickle-down" benefits. But, aside from how one feels about trickle-down arguments, Graber's observation still holds even if this is true: it still involves focusing first and foremost on a harm shared by the upper classes and an issue that interests them.

Finally and probably most important by way of reservations, one might argue that the problem with Graber's statement is its focus on the Constitution rather than the law in general. On this view, the Constitution has a lot to say about individual rights of this sort and very little about economic rights. One might even believe this argument to be true in some objective sense, insofar as one believes there is a clear constitutional text that reflects itself in the rulings of the courts. But I don't find this argument especially convincing. Twenty years ago it was not clear at all that the Constitution spoke to the state's role in marriage itself, although it was quite arguable, in the interval between Romer and Lawrence, that it spoke to how the law penalized personal conduct related to sexual orientation. It was not much more or less clear at this point that the Constitution guaranteed a right to same-sex marriage than it was forty or fifty years ago that the Constitution would not soon be read to guarantee economic rights for the poor. There were surely class-based, or class-relevant, reasons why the Constitution ultimately yielded few results for that movement, and considerable results for the same-sex marriage movement.

The "next step" point is this. Once we reach Gruber's conclusion about the Constitution as a mechanism for social change, we ought to consider what this says about the social movements that have been a part of this story as well, and that are always relevant to legal and constitutional change. In my crowd, the tendency to idolize judges is an on-again, off-again thing, and the notion that judges mostly end up giving traction to legal cases that benefit the upper classes would hardly be shocking. But they do tend to have a more on-again, on-again affection for social movements, and even to treat them--or at least those movements they support--as genuinely popular in nature. And yet it seems to me that Graber's statement would still be largely true if it were extended beyond the Constitution and the courts, to say that social movements are a relatively effective means of serving the social interests of the upper classes, and a relatively ineffective means of serving the material interests of the lower classes.

Two small points about this. First, one might question whether the current prominence of the Black Lives Matter movement serves as a counter-example. I doubt it. For one thing, it's too early to know how successful the movement will be. For another, it's possible that the movement's greatest tangible reforms will end up being directed toward stigmatic harms shared by African-Americans of all socio-economic levels and not material harms suffered by the poorest in the community. Finally, and I suspect this is true of most or all social movements, at the end one would want to know how much of the actual payout resulting from the movement and whatever reforms it achieves is siphoned off, cy-pres fashion, by more affluent sectors--giving rise to more jobs by professional consultants, for instance, or resulting in foundation grants to think tanks and most certainly to universities and their many institutes. Second, and as usual, the general point carries across ideological lines. Even if one believes the Tea Party movement was at some point a genuine popular movement among less affluent right-wing Republicans, it is certainly true that its financial benefits were enjoyed largely by people whose first or second homes are clustered within ten miles around the Capitol building.