Legal scholars have long debated how much impact Supreme Court decisions ultimately have on efforts to change law and society. In The Hollow Hope, Gerald Rosenberg emphasizes the significant challenges courts face in attempting to create lasting changes to public policy. Courts, of course, cannot enforce their own decisions. They must persuade others to do so, and there must be political conditions in place that favor the change.
Political support for a court decision can determine how much impact it has on society. In their book Judicial Policies: Implementation and Impact, Bradley Canon and Charles Johnson note that many factors influence how much difference a court decision eventually makes. How will it be interpreted? How will it be implemented? And in the end, how will those directly affected by the case — the “consumers” of the legal change — actually behave?
Of course, support for a decision (or the lack of it) can be driven by how the media report it and how special-interest groups, public officials and the public react. Interest groups will rally to influence those who interpret and implement the decision as well as lawmakers. Those interests may support expanding the rights in question, or they may mobilize against the decision, creating a backlash that undermines the change.
The way the Windsor case is interpreted and implemented will make a real difference in how many same-sex couples receive benefits. It seems quite clear that legally married couples in 13 states will be able to claim federal benefits. But what about the states that allow only civil unions? What about American citizens who are legally married in another country, such as Canada? What about a U.S. citizen who marries a foreign national? And if residents of states that, like North Carolina, ban both same-sex marriage and civil unions get legally married in another state and then return home, will they be eligible for federal benefits?
The Internal Revenue Service now allows legally married same-sex couples to file a joint tax return even if they live in a state that doesn’t recognize their marriage. How other federal agencies apply the law will make a huge difference in the way states react to the new benefits.
Still, further confusion in the everyday administration of benefits seems likely. Would an N.C. couple, for example, receive only federal benefits but not state ones? This is particularly tricky because many state benefits, such as Medicaid, are tied to federal benefits and aid.
Governments and employers alike will need to sort all this out, and the administrative costs could be significant. But states that provide a clear and easy pathway for claiming the 1,100 federal benefits, as well as the 13 states that also offer their own benefits, may turn out to have a real economic advantage. They’ll be more attractive to LGBTQ individuals, and employers in those states may benefit by attracting and retaining talented workers.
I began by arguing that the Windsor case may be the most significant domino to fall so far in the fight for equal rights for same-sex couples. And while legal scholars such as Rosenberg disagree, I am most persuaded by political scientist Michael McCann who, in Rights at Work, argues that court decisions can create lasting, meaningful social change by providing support for social movements and individual rights claims.
Although court cases can trigger backlash, such as from conservatives advocating for traditional marriage, court decisions can also alter legal consciousness and change public opinion, creating new opportunities to claim rights in society at large and in our legal system. Over time, these new legal opportunities and even the resulting conflicts may lead to more legal and social change.
Every time a couple seeks an answer to one of the questions I’ve raised about how the Windsor decision will be applied, it’s a chance for lawyers and courts to interpret the law, whether broadly or narrowly, and for those impacted by the decision to claim their rights.
And if you claim these new rights, you just might get them. Any legally married N.C. couple that pushes back after being denied one of those 1,100 federal benefits creates an opportunity for a judge to rule on the dispute — and thus to take the law in new directions. That’s especially true for the tangled web of federal versus state benefits.
If gay couples in N.C. or any other nonrecognition state claim rights under Windsor, elected officials at the federal, state and local levels will be pressured to change laws. If they don’t, the resulting disputes will be heard by higher courts, and some will eventually make their way to the Supreme Court. Couples who believe that any of those 1,100 rights apply to them should consult an accountant or attorney and then liberally claim every single benefit that might make a difference in their lives.
Thanks to the hundreds and possibly thousands of claims and cases that will probably be generated by the precedent in Windsor, America will hear more and more stories about our families, our friends and our neighbors who are denied equal treatment. There is no better way to raise the consciousness of North Carolinians and residents of other nonrecognition states, to change public opinion, and to force the legal system and its representatives to act.
Indeed, Windsor has already created legal change in those 13 states where same-sex marriage is already legal. And in time, I strongly believe that it will lead to full equality for LGBTQ couples and individuals nationwide.
Roger Hartley is a professor of political science and public affairs at Western Carolina University.