No, this is not an early April-fools blog caption, though I realize it sounds like a bit of academic self parody. This week’s arguments in the constitutional challenges to the Defense of Marriage Act (banning federal recognition of state-recognized same-sex marriages) and California’s Proposition 8 (the ballot initiative that amended the California Constitution in order to ban same-sex marriage) really do have a connection to climate change law.
Both problems present a classic question of the extent to which law is capable of changing destructive social norms in a democracy. Marriage equality advocates seek law’s assistance in overcoming an ingrained historical social norm that condemned intimate same-sex relationships and deny individual fulfillment. Climate legislation advocates seek law’s assistance in changing socially ingrained fossil-fuel powered consumption patterns that are destructive to the global environment.
Frank Bruni’s column in yesterday’s Times argues that the social and political movement towards marriage equality is already inevitable — that the Supreme Court’s decision in the DOMA and Prop 8 cases may hasten or delay universal marriage equality (depending on which way, and how broadly or narrowly, the Court rules), but will not ultimately drive the social change. He compares the marriage equality cases to the Supreme Court’s failure to resolve the national debate on abortion rights in Roe v. Wade or gun control issues in Heller v District of Columbia.
But Bruni doesn’t mention the Supreme Court case that arguably had the biggest impact on changing American social and cultural norms — the school desegregation case, Brown v. Board of Education. One cannot imagine the U.S. political culture achieving desegregation in schools and in society at large without the huge push given by the Supreme Court’s holding that the Equal Protection clause forbade school segregation. This societal push by the Supreme Court (which was condemned at the time by such prominent legal scholars as Herbert Wechsler) helped set the political stage for the Civil Rights Act of 1964, despite the short term political backlash against Brown.
Similarly, the social movement towards marriage equality received a helpful judicial push in the state high-court cases in Massachusetts, Hawaii, California, and Iowa finding State-equal protection and fundamental rights interests in marriage equality. While the immediate political backlash in two of those three states was negative, the positive example of recognition of same sex marriages helped set the stage, ultimately, for political acceptance in those states that have now recognized same-sex marriage trough political means. If marriage equality is now a political inevitability, this political inevitability got some judicial help along the way, as it is hard to imagine the political system coming around to marriage equality without the judicial push.
I find it equally hard to imagine that the political system will come around to seriously addressing fossil fuel consumption without some external push. Entrenched social assumptions, patterns of settlement and employment, infrastructure investments, and cognitive biases favoring current consumption aver avoidance of future harm all work against a political consensus in favor of implementing the societal changes necessary to address climate change — which may be on the order of magnitude of the school desegregation upheavals. Is there room for a climate Brown v Board of Education? Like the NAACP Legal Defense Fund in Brown, Our Children’s Trust is sponsoring climate change litigation based on a constitutional Public Trust theory. Just as Brown v Board of Education helped to enlighten the polity that segregation is a destructive system that should not be tolerated, and Goodridge v Department of Public Health led to political acceptance of marriage equality in Massachusetts that might have been a long time coming otherwise, perhaps one of the public trust cases seeking to require a state response to climate change will perform a similar political function. One can only hope. On the other hand, when I suggested in my Environmental Law class the other night that the level of price incentive necessary to reduce U.S per-capita gas consumption by 80% might be as much as $25 per gallon, one student asked, “Wouldn’t that be a violation of the constitutional right to travel?”