Schacter, Jane 2011 Ely at the Altar: Political Process Theory through the Lens of the Marriage Debate

See also: Democracy and Distrust
Ackerman, Bruce The Substance of Process 1981 (PDF)
Ortiz, Daniel Pursuing a Perfect Politics: The Allure and Failure of Process Theory 1991 (PDF)
The Puzzling Persistence of Process-Based Constitutional Theories 1980
Sex and Marriage, Gay Marriage: Obergefell v. Hodges (2015) written 2023-04-17 (Full opinion, dissents.)

This Article analyzes politicalprocess theory through the lens of the contempo- rary debate over same-sex marriage.
The Article arguesthat the mar- riage debate reveals deep conceptual problems with process theory as it has been conventionally understood, and that looking at the theory through this lens can point the way to refashioning it in both doctrinaland conceptualterms.

2023-10-09: Schacter, Jane Ely at the Altar: Political Process Theory through the Lens of the Marriage DebateMarriage Debate 2011 (PDF)

• Introduction (1364)
• "political process theory." -- the idea that a court's ability to override a legislative judgment ought to be calibrated based on the fairness of the political process that produced the judgment.
• ... he principle has been most prominently associated with the more specific idea that judicial scrutiny should increase when a socially subordi- nated group cannot compete fairly in the political process.
• ... perhaps the longevity is better attributed to the magnetic normative appeal of a principle that is grounded in fairness, dispenses with the need for elaborate institutional analysis, and claims to resolve the countermajoritarian difficult ....
• In the same year that Ely's book appeared, his then-colleague Laurence Tribe published a fairly devastating takedown of the idea that process theory could deliver on its eponymous promise to eschew controver- sial substantive questions.
• ... there is little evidence that process theory has powerfully in- fluenced constitutional decisions.
• ... process theory seems to have made something of a splashy comeback in one of the most salient socio-legal debates of the day-the debate over same-sex marriage.
• The question I take up in this Article is what can we learn about political process theory--its status, its conceptual coherence, its viability--from the same-sex marriage controversy.
• [among other problems] ... process theory lacks the internal normative apparatus to answer the very question it makes central--whether a group is sufficiently disadvantaged in the political process to warrant special judicial solicitude. [See Tribe Part III]
• I argue that a normatively important core principle can be ex- tracted from process theory, but only at a high level of abstraction. The point worth salvaging is that animus and hierarchy compromise democratic equality in ways inconsistent with the principle of equal protection.
• Part I -- A Brief Tour of Process Theory (1370)
• Part II -- Assessing Process Theory through the Lens of the Marriage Debate (1390)
• A. Missing Metrics, Missing Values (1391)
• I want to press three interrelated points.
• First, process theory is tissue-thin. In the absence of clearer substantive commitments about what makes a political process fair and how much/what kind of political power a group "should" have, the theory offers little to resolve questions of application like those raised in the marriage debate.
• Second, process theory is also thin in its institutional assumptions. It makes reductive and stylized assumptions about courts and legislatures that do not stand up well to empirical scrutiny and that distort the roles of legal institutions in social change.
• Third, process theory does not live up to its animating aspiration to be meaningfully separate and distinct from substantive equality analysis itself.
• ... one camp emphasizes access to the political process and the other stresses the limitations on what that process can achieve in the face of entrenched discrimination.
• ... reflects the use of fundamentally different metrics to assess political power.
• ... process theory does not, itself, tell us which metric is the correct one.
• ... two central issues ... the preclusion thesis (if the LGBT community can secure legislative redress against discrimination, does that negate the possibility of a political malfunction?) and the relevance of direct democracy .... [emphasis added]
• The preclusion thesis, in particular, implicates a key baseline question. [Do] disadvantaged groups have "sufficient" power to be left to their own political devices, rather than receiving solicitous treatment from a court.
• Answering this question depends not only on how political power is defined, but on how sufficiency is understood.
• Therein lies the baseline question. To assess meaningfully whether historical prejudice undermines a group's power, we, presumably, need to know something about what the group's political power would look like in a properly functioning political process.'
• The dilemma is this: if the need to politically organize is itself generated by long-term historical subordination, it is difficult to con- jure the untainted baseline political process against which to measure the current process, ....
• ... the need to resort repeatedly to the political process--as heterosexuals qua heterosexuals do not--is the important signal not of political power, but of social antipathy of sufficient magnitude to warrant legal redress.
• All in all, direct democracy has been a formidable force in blocking gay rights measures. [referenda vs rights...suppression of redheads by all others]
• B. Institutional Caricatures (1397)
• A second set of problems with process theory that the marriage debate reveals-and a second way in which process theory is thin-relates to its institutional assumptions.
• Either the political process op- erates fairly and can be trusted to sort out social issues, or the political process malfunctions based on bias and courts must step in to rescue the populace and its representatives from themselves. It is one or the other.
• But a core empirical problem with this view is that, while the vision of courts as consistent countermajoritarian forces has deep and enduring normative appeal, it is not empirically well supported. [Seen The Will of the People ]
• Viewed in this light, then, process theory is premised on the faulty notion of courts as a leading, not trailing, indicator.
• ... enactment of prior legislation protecting groups may be a signal to courts that the group is a plausible candidate for protection.
• All of this suggests that it is problematic to regard courts and legisla- tures as occupying sharply separated spheres.
• The significant point to see for our purposes is that courts and the political process are influenced by, and responsive to, one another.
• This is a very different idea than the one embraced by classic process theory, in which the institutional choice is framed in either/or terms, and courts are seen as standing apart from the political process and as immune from the forces that shape it.
• Part III -- Implications: Mapping a Road to Footnote 4.1 (1402)
• A. Doctrinal Reform (1402)
• First, and most modestly, we might revisit the criteria used by courts to decide whether heightened scrutiny is appropriate.
• There are two other plausible doctrinal reforms ... One would be to extend the tiers of scrutiny, and the other would be to eliminate them.
• The case for extending the tiers of scrutiny would proceed from the observations made earlier about the crudity of political process analysis and the associated need to disaggregate and particularize the concept of political power.
• Recall that the courts ruling in favor of marriage equality have done so under every standard of review, suggesting that the formal tiers may be of more rhetorical than substantive significance.
• The core equality question in the case [constitutionality of California Prop 8 barring same-sex marriage] is whether there is any legitimate reason to exclude same-sex couples from a public institution [marriage] otherwise open to all.
• B. Equality and Democracy Reconsidered
• ... process theory never really undertakes to define and elaborate democracy, or to explain with any particularity why and when entrenched disadvantage is inconsistent with democracy.
• ... Ely's animating claim that his rules of representation rein- forcement allow courts to avoid controversial normative choices.
• The failure to develop a more specific theory of democracy is no small omission. As we have seen, it is an important part of what gives process theory a certain emptiness at its core.
• There is no singular answer to the question of what kind of democracy the Constitution creates or demands.
• ... the approach outlined here rejects the simple normative equation of majoritari- anism with democracy and presses those engaged ... to consider the distinctively democratic dimensions of core constitutional values, such as equality, liberty, and citizenship. [See Schacter-1997-RomerAndDemocracysDomain.pdf and Balkin-1997-TheConstitutionOfStatus.pdf