This is an excerpt from my book-in-progress, You Would Choose Now: Measuring America’s Progress Toward Fairness and Tolerance. It’s a data-driven exploration of progress (or not) in public opinion and civil rights. The completed chapters are available as an Early Access edition on LeanPub.
This excerpt, from Chapter 2, is about where civil rights come from.
Where do civil rights come from?¶
Tracing the history of these civil rights is like a lesson in federalism, constitutional law, and the checks and balances of the three branches of government.
The prohibition on workplace discrimination started with state laws, and was later affirmed by the Supreme Court, based on a law passed by Congress.
In the case of gays in the military, the initiative came from the president as Commander in Chief of the armed forces, but it was enacted by Congress.
Adoption rights were established first by state supreme courts and then by the Supreme Court of the United States.
The right to marry was recognized first by state legislatures, then by the Supreme Court, and then made law by Congress.
Each of these stories followed a different path through the state and federal governments -- what they have in common is that public opinion led the way. In theory, civil rights are not supposed to depend on public opinion. In the Obergefell decision, Justice Kennedy says so:
The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” This is why “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
The quotations Kennedy included are from the decision of a 1943 case, written by Justice Robert H. Jackson -- not the most widely known Supreme Court justice, but among legal scholars he is recognized as one of the most quotable.
Ideally, fundamental rights should be “beyond the reach of majorities”, but the examples in this chapter suggest that reality is not so ideal.
When Bill Clinton promised to repeal the ban on gays in the military, he might have been guided by respect for the Bill of Rights -- but you don’t get the nickname “Slick Willy” by acting on principle. More likely, he believed that his promise was popular enough that it would earn more votes than it would lose.
When members of Congress voted for the Defense of Marriage Act in 1996, they probably believed that the majority of their constituents were opposed to gay marriage. And they were right -- fewer than 40% supported gay marriage at the time. Then when they repealed it in 2022, they probably knew that their constituents had changed their minds -- support was above 60%.
In the 2022 Senate vote, there were eight Senators who had also voted in the Senate in 1996, and two of them voted for both bills -- that is, first they voted against gay marriage, then they voted for it. In the House, 13 representatives voted for both bills. Were they being inconsistent? It’s possible that in the 26 intervening years, they had changed their personal views -- based on the data we’ve seen, it’s clear that many people did. But I think it’s as likely that they were faithfully representing the views of their constituents.
In theory, fundamental rights “depend on the outcome of no elections”, but in reality, they absolutely do.
This excerpt is from You Would Choose Now, a work in progress I plan to publish in 2027.