Picking Our Battles: The Paradox of Power & Social Justice

Yesterday I was watching the Melissa Harris Perry (MHP) Show and legal scholar  Kenji Yoshino talked about a possible paradox at play in regards to the Supreme Court (SCOTUS) ruling on Prop 8 (and the other case that no one seems to reference by name).  He brought up the following point: a group has to have a significant amount of political power in order to even make it to the Supreme Court, who will rule on whether they are being discriminated against.  This can be restated as,

“A group must have an immense amount of political power before it will be deemed politically powerless by the Court.”

I can’t find the exact clip, though here is Sunday’s MHP show.  And since I was forced to search the internet for another mention of Yoshino’s quote, I stumbled across a law review article he wrote on the topic (no pay wall!).

Today I was reminded of this paradox as I logged onto Facebook and was greeted with a newsfeed awash in red and pink:

a pink equals sign on a red background

(more after the jump)

I had some conflicting thoughts once I realized that people were changing their profile picture in support of a drive by the Human Right Campaign.  On the one hand, I was touched by the overwhelming visual effect that there are a whole ton of people who support the right for same-sex couples to marry.  I wanted to contribute to that effect.  And yet, I also felt somewhat…frustrated (anxious?) since I know that there are DOZENS of campaigns for equality and against discrimination that deserve just as much attention as this issue, and are not receiving it.  (In fact, the MHP show I linked to talks about some of them, such as: workplace discrimination, housing discrimination, and discrimination against transgender servicemen and women.)

For instance, while it is important that same-sex couples have the same right to marry and receive the benefits of marriage, people who want to form less traditional family structures have found their lives made harder because so much of our social safety net (e.g. survivor benefits) are tied to the institution of marriage.  For those people (het or queer) who don’t want to participate in this institution, they sacrifice tangible legal and social benefits to do so.  As I once heard it pointed out, it seems overly restrictive that we simply cannot name our kin for things like survivor benefits, hospital visitation rights, co-habitation, child rearing, and inheritance (in many cases).

But it’s hard to argue that we should radically re-conceive what role marriage plays in our legal system when there is simultaneously an argument gaining momentum to simply let a group of people conform already “established norms” (a Scruton reference).  That isn’t to say that same-sex couples who want to get married as selling out (any more that opposite sex-couples who want to get married are.)  It’s only to point out that I think in the same way there is a paradox of power at play in how SCOTUS comes to rule on discrimination, citizens who want to support causes of social justice face a related paradox.  We want to be practical and pick our battles.  But often, the battles that most badly are in need of allies and support are the ones on the fringes, with the least momentum and are the least likely to succeed.  A cause often needs to have a significant amount of support before it even crosses out radar as being in need of support. 

So while the equal sign campaign has many of us thinking about equal rights for LGBTQ communities, here are some other battles that equally deserve our support:

Trans inclusion in the military

Transphobic legislation (like the most recent ID to Pee bill in AZ)

The gay and transgender wage gap

LGBTQ workplace discrimination

UPDATE: In light of the HRC’s abysmal history of supporting trans* rights, I did some old school editing in paint.

This is in light of the fact that people have expressed pain and frustration at seeing HRC receive so much free, positive publicity when their track record on “human” rights has been deeply marred by their unwillingness to support the T in LGBTQ, especially in regards to the 2007 ENDA legislation.  They seem to be doing a better job since then, but some people have remained skeptical of their commitment to being at the forefront of supporting trans* rights.

If anyone has thoughts about HRC and their work (or lack thereof) on ending discrimination against trans* persons, I would like to hear them.  I only learned about HRC and the ENDA legislation yesterday.

Also, I’m a bit embarrassed to admit this, but I finally looked up the term “trans*” because I’ve seen it gain popularity, but I didn’t know how to use it grammatically (semantically? Help, Phil of Langers!). I had no clue the asterisk has geeky origins!  (The more you know.)

15 thoughts on “Picking Our Battles: The Paradox of Power & Social Justice

  1. Thanks. This all seems well stated. I’ve never been much interested in directly participating in the SSM movement, partly because I think there are more important issues/finite amounts of time and partly because I’m not supportive of the institution of marriage itself (i.e. I think it’s a bad institution that should be minimized or abolished). But I’ve never held any grudge against those who prioritize it, or against those who choose to exercise the right to get married (where that right exists).

    Maybe the toughest part of this is to: a.) decide what to do with a finite amount of time; and b.) figure out when and how one movement serves to energize others.

  2. I stopped being a member of the HRC because of its way of dealing (or not dealing) with trans issues, but I changed my profile picture anyway. I agree that making same sex marriage legal is not the most important thing we should be trying to achieve, but I think people should have the right to get married. It is a valuable thing to work for, even if it is not the most valuable thing to work for. At crucial moments like this, when that *is* the issue being debated before the Supreme Court, and HRC is doing a massive campaign to show how much public support there is for same sex marriage, I will participate. It is the right thing for me to do, because of the options that have been presented to me. I wish there were better options, but there aren’t.

  3. I think there are options I didn’t explore, and that may have been better. I’m seeing some really creative alterations of the HRC image that have the same visual effect of showing support, but don’t endorse HRC. Maybe I should change my profile picture to one of those. But at any rate, I would still be participating in a campaign sponsored by HRC. I don’t think there is any way to win in this kind of situation. If you participate in these kinds of mass movements, you are implicitly supporting the organization(s) running them whether you like to or not. I think it’s an interesting question—particular to each issue—whether to participate.

  4. I agree with all the complexity brought out here. I am one of the people who used a riff on the original image as my profile picture yesterday. Because it was so pointedly NOT the original image – mine is pretty far from the original image – I meant it to be read specifically as performing my non-endorsement of HRC along with my support for the cause. So while I agree with LM above that I was implicitly supporting them by supporting their campaign, I hope that I was at the same time actively calling them into question (rather than just failing to endorse them). I’m not confident that that was the right way to go, but it seemed the best option for me. And I have to admit I just loved watching facebook turn red and pink and seeing everyone get so creative so quickly riffing on the original image.

  5. Oh wow I love the use of sushi Rebecca! I am in the process of doctoring the image I’m using because I think the red-pink visual has been powerful, but I also want to address the need for more explicit support of trans* rights.

  6. First of all, any individual can approach the Supreme Court. No need to be part of a group. In fact, groups often lack the standing.
    Second, a lot of rather powerless individuals have been able to have their case heard by the Supreme Court.
    Third, the court does not “deem somebody to be politically powerless”. Who on earth would go to court to ask for such a ruling? The Supreme Court will rule if a certain law, or the lack thereof, violates the constitutional rights of the appellant. This does not depend on political power or not, although if the individual has a lot of political power, chances are of course that Parliament will already have changed the law the way he wants to, thus rendering any approach to the judicial system unnecessary.

  7. Thanks Stacey! I love your redone graphic too.

    Andreas got up on the mansplainy side of the bed this morning.

  8. Wait, do you disagree that when a group of people are discriminated against, they are being rendered powerless in a significant sense? (They at least don’t have the power to stop the discrimination on their own, right? That’s part of the definition of discrimination, that a group is being disempowered by an institution, right?)
    Or do you disagree that the court rules on whether or not a group of people are being discriminated against?

    You seem to be misinterpreting me or Yoshino as saying that only groups approach the Supreme Court. Obviously individuals have had cases heard. (Miranda v Arizona, etc.)

    I may have phrased it sloppily, but that’s also why I linked to Yoshino’s article. Perhaps I should have said “Marginalized groups.” And we’re talking about trends here. I thought that would be a given. But still, I would love citations for all these “powerless individuals” who have had their cases heard.

    Here is some of what Yoshino says about power in the article:

    “The conventional wisdom that courts should not protect groups with sufficient
    political power dates back at least to the famous 1938 case of United States v.
    Carolene Products Co.”

    “The modern doctrinal home for the idea that political powerlessness is a
    predicate for more rigorous judicial review lies in the equal protection heightened
    scrutiny jurisprudence. The Supreme Court has determined that five classifications
    merit such enhanced scrutiny—race, national origin, sex, alienage, and non-marital

    “Miller testified that gays were politically powerful
    because, for instance, they had allies among politicians, labor unions, churches,
    and corporations. To challenge this characterization, the plaintiffs offered their
    own political science expert, Professor Gary Segura of Stanford. Segura observed
    that the allies cited by Miller were not reliable. He also observed that the political
    power of opponents to gay rights (specifically certain religious denominations)
    significantly diminished the political power of the gay community. Although
    their experts vehemently disagreed about the magnitude of gay political power,
    both sides were operating under the assumption that only politically powerless
    groups could get elevated protection from the courts. Yet the practice of the courts
    only partially reflects that principle. ”

    “As a matter of practice, a group usually must have significant political power
    before the Court grants it heightened scrutiny. If a group is sufficiently politically
    powerless, it will never even get on the Court’s radar. We could think here of
    groups, such as the intersexed,85 that are so marginal that the Supreme Court has
    not even acknowledged their existence. Even when a group is recognized, the
    courts will be loath to move too quickly if not enough states have moved in its
    favor. While we like to think of the courts as forums of principle that ignore
    prudential considerations, this is not how the courts always operate”

    I may have butchered his point, but Yoshino has enough credentials as a constitutional law scholar that he deserves a good deal more charity when we’re assessing an argument of his about the supreme court.

  9. Also:

    “It may seem like a contradiction to say that gays are simultaneously
    politically powerless enough and politically powerful enough to warrant aggressive
    judicial review. But far from being a contradiction, this statement captures a
    coherent, if nuanced, truth about judicial decisionmaking. The judiciary is most
    likely to intervene when groups are in the intermediate space of political power—
    powerful enough to be on the Court’s radar, but powerless enough to remain
    vulnerable in the political process. That is where gays and lesbians are today”

  10. There is a relevant difference with SSM. it’s probably going to be generally recognized very soon.

    At the same time, I worry a lot about some of the background. We shouldn’t need majority approval before the rights of a minority are recognized.

  11. One link between political power and the supreme court’s hearing a case seems to be very simple: they only take cases with some national significance (I think).

  12. YES! Thank you! I would love to see where equality for all truly meant “all,” not just those who (want to) follow certain norms…

    Additionally, one of the little known things is that in the states were same-sex marriage has been legalized, domestic partnership benefits are being chopped away, forcing people into marriage even when they’d prefer DP if they want those benefits.

    I also would like to make a plug for a petition drive to the American Academy of Pediatrics. At the same time they were endorsing same-sex marriage they were disparaging single and other unmarried parents by claiming that marriage somehow magically creates a stable and healthy environment for kids. (In their defense, I guess, that’s another paradox in the argument for same-sex marriage that Nancy Polikoff explained much better than I can. Essentially, we use research that shows that kids growing up with same-sex parents aren’t harmed at the same time that we are claiming that they are somehow harmed because their parents cannot marry. Something like this…)

  13. With minor exceptions not relevant here, I think you could say that because the cases reviewed by the Supreme Court generally address an issue on appeal arising under the federal Constitution or federal laws and regulations, they are all in some sense of “national significance”, even if the particular significance may not be well understood by or of conscious interest to the average person. You could say the same about most lower federal court cases as well, but because only the Supreme Court’s precedents are binding on all lower courts nationwide, Supreme Court cases are a fortiori of national significance regardless of their subject-matter.

    If two different federal appellate courts (the “mid-level” courts, e.g. the Second Circuit, the Ninth Circuit, etc.) have previously reached inconsistent holdings on a question of federal law, the Supreme Court is much more likely to accept the appeal in order to establish national federal judicial uniformity on the legal question, but the likelihood of that situation having arisen would not appear to have much to do with any person’s or group’s political power.

    Prof. Yoshino’s statement that “As a matter of practice, a group usually must have significant political power before the [Supreme] Court grants it heightened scrutiny” could easily be misunderstood. Heightened scrutiny does not mean paying more attention to a case or to individual petitioners who belong to the group, or being more likely to accept a case for review, etc. It’s a term of art referring to a kind of standard of justification against which a small percentage of laws alleged to violate the Equal Protection Clause will be evaluated in the course of deciding a case. Misunderstanding this could give someone a distorted or exaggeration idea of the the link between “political power” and the Supreme Court’s willingness to review a case.

    A significant minority of cases reviewed by the Supreme Court (I think about a quarter), for example, are cases involving criminal law and criminal procedure, and there the party is often an individual convict with no political power to speak of.

    Virtually any law (including the Constitution) establishes explicit or implicit classifications among the populace, and in the U.S. most of these – whether they are classifications along the lines of wealth/poverty, age, disability, political affiliation, conduct or otherwise – when reviewed by a court, must satisfy a standard level of justification for establishing the classification, regardless of whether there is a huge disparity or no disparity at all, in terms of political power, between the groups on either side of the class line. Race-based and religion-based classifications are examples of two well-known exceptions to the general rule; Yoshino mentions some others.

    Yoshino’s statement that “The judiciary is most likely to intervene when groups are in the intermediate space of political power” also risks being misunderstood. One might be led to infer from the use of “intervene” (possibly not the best word choice here for several reasons) that absent this specific kind of “intervention”, the federal judiciary is not lifting a finger, deciding cases diligently and fairly, providing lawful remedies, etc. in other instances. The federal judiciary intervenes in a significant way from the time someone files a federal-law claim in the lowest federal court.

    Anyway, I thought all that merited clarification.

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