Perhaps one of the largest criticisms of Constitutional Culture is that it doesn’t necessarily serve the purpose of channeling dissent into nonviolent forms. The recent growth of the militia movement and constitutional sheriff movements appear to indicate a rejection of properly understood constitutional norms. The Militia movement, as demonstrated by the Bundy incidents in Nevada and Washington, deliberately opposes the government monopoly on force, utilizing their own weapons as a safeguard against perceived tyrannical overreach. In the “Bundy’s Rebellion,” Cliven Bundy, his children, and a host of militia members recruited from across the country began an armed standoff with the federal government, contesting the use of public lands for grazing rights. This serves as one example in the past few decades of armed conflict.
The same concern presents itself with respect to the Constitutional Sheriff Movement. The central idea of the Constitutional Sheriff Movement is that “a sheriff holds ultimate law-enforcement authority in his county—outranking even the federal government within its borders.” In recent years, its membership has grown, and as of September 1st, 2017, the movement asserts it has over 4,500 due paying members, including 200 sheriffs. In 2013, Arpaio, the sheriff recently pardoned by President Trump, along with 500 other sheriffs “vowed not to obey any federal law that required them to confiscate guns from private citizens.” This movement is related to the militia movement, for they have gained traction together as a collection of citizens skeptical of government intervention mobilize. Cliven Bundy even invoked the constitutional sheriff movement when he called on a sheriff to defend him from federal agents in 2013.
Yet, these groups are perhaps some of those which have best employed constitutional culture to their advantage. After all, “constitutionally-mindful militias, minutemen, gun collectors, hunters, and libertarians” fashioned the modern conception of the Second Amendment with “little to no help from the courts, no significant resistance from liberals, and astounding success in public opinion and the legislature.” They wrap themselves in constitutional rhetoric and elevate the Constitution to a deific status, using state’s rights, gun rights, and the Bill of Rights generally to support their actions. In fact, “number of candidates for sheriff or county commissioner around the country have campaigned explicitly on county-first theories of legal power.” Cliven Bundy carried around a small pocket Constitution, from which he frequently quoted.
The Militia Movement’s use of violence doesn't disprove the utility of Constitutional Culture. Many of those in the Bundy Rebellion were arrested and processed through the legal system, and the movement itself largely represents a deviation from the norm. Unable to effectuate large scale constitutional change, it remains a fringe element, despite its recent growth. Further analysis could be performed to determine the compliance of the Constitutional Sheriff Movements and the Militia Movements with the consent and public value conditions articulated by Reva Siegel, but that is research for another time.
B. Constitutional Culture in the Context of Gay Rights
Background Information: From Romer to Obergefell
Three years ago, the Supreme Court of the United States held that state laws defining marriage as a relationship between a man and a woman denied same-sex couples a right to marry which is protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, yet almost fifty years ago, the Supreme Court of the United States refused to even recognize a same-sex marriage claim in Baker v. Nelson. When the couple appealed the case to the Supreme Court, the Court issued a one-sentence order stating that “the appeal is dismissed for want of a federal question.” The progression towards marriage equality has come a long way along two different paths: gay rights and marriage.
With respect to the first, gay relationships were often criminalized in many states around the country. In 1986, the Supreme Court ruled that states were allowed to criminalize same-sex sex in Bowers v. Hardwick. In just a decade, the Court concluded, in Romer v. Evans, that a Colorado constitutional amendment targeting homosexual individuals based on animosity lacked a rational government purpose. Continuing course, the court reversed Bowers v. Hardwick in Lawrence v. Texas, which decided that criminalizing sodomy denied gay individuals dignity, liberty, and equality as protected by the Due Process Clause. After Lawrence v. Texas, the courts began to rule that the exclusion of the gays from the military violated liberty and equality, which ultimately led to Congress repealing the ban.
On the other side of the gay rights movement, the marriage equality debate began in earnest from the 1990’s forward. In 1990, the courts began to scrutinize state restrictions on the rights of same sex couples to marry under state constitutions. However, citizens quickly mobilized against the state court decisions, prompting the Defense of Marriage Act. After the Defense of Marriage Act was passed by Congress, the citizens in Hawaii and Alaska amended their own state constitutions in 1998 to limit marriage to one man and one woman, and this was just the beginning. After the Massachusetts Supreme Court ruled that denying marriage licenses to same-sex couples violated the state constitution in Goodridge v. Department of Public Health, a counter-movement of citizens arose, pushing for state constitutional prohibitions on gay marriage. Before 2014, thirty-one states had constitutional or statutory provisions which explicitly limited marriage to heterosexual couples.
With respect to backlash against the gay marriage movement, some commentators assert that the constitutional amendments and the gay marriage issue brought more conservatives to the polls, contributing to George Bush’s 2004 victory.
In 2013, Hollingsworth v. Perry and US v. Windsor both arrived at the Supreme Court. Perry challenged the state marriage bans under the federal constitution, and Windsor challenged the constitutionality of the Defense of Marriage Act. In Perry, the Court ruled that the parties lacked standing to bring the suit, which sent the decision back to the lower courts, yet in US v. Windsor, they struck down the Defense of Marriage Act. At this point in time, the courts and its observers began to consciously consider the backlash that might stem from judicial decisions. The district judge in Perry asked the plaintiff’s attorneys about the risk of backlash before each side invested heavily in a lengthy trial. Others filed amicus briefs discussing backlash concerns, or authored editorials in mainstream news outlets, such as Harvard professor Cass Sunstein.
When the Supreme Court delivered their opinion on Obergefell in 2015, they recognized the right to marry for same-sex couples. In his dissent, Chief Justice Roberts predicted that “people denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide,” citing backlash as a key concern in judicial intervention for this issue. However, at the time of its decision, public opinion on marriage equality had shifted to such a degree that overt backlash was unlikely to occur. As compliance with Obergefell went off without much backlash and marriage licenses were issued regardless of sex, opponents to same sex marriage began pursuing opposition in other fronts.
Constitutional Character of Gay Marriage: Narrative
The narrative and discourse surrounding the Gay Rights movement took on a constitutional character in two different, yet related, ways. The first includes the rhetoric adopted by the movements, distinguishing the movement and countermovement from the prior social understandings of homosexuality, and the second references the development of legal precedent as it evolved from Baker v. Nelson.
Before the mid-nineteenth century, the specific phrase “homosexual” did not exist, and while people engaged in homosexual activity, it was “not seen as an identifier of personhood.” “Homosexuality” was coined in 1869, creating homosexuality as a distinct, “other,” category from the rest of society, when Dr. James announced he was launching a quest to discover the cause of homosexuality as science tried to make sense of something defined as a sin. The creation of a category connoting abnormality separates out a group of people, rather than behavior, based on who they were attracted to. Various laws were passed which singled out and targeted this group. If the laws did not accomplish separation, “social disapprobation” did, for individuals could be “arrested, fined, fired, evicted, or certainly shunned.” As much of the medical and scientific research characterized homosexuality as an illness, the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders classified homosexuality as a mental illness for both the first and second editions.
According to Teresa Godwin Phelps, the Director of Legal Rhetoric at American University, the representation of “homosexuals as physically dangerous, especially to children” became prevalent despite having little data to support it. A content analysis of articles in Time and Newsweek from 1948 to 1968 “reveals that 79% of the articles depicted gays as sick and 52% as predators, or both.”
On June 27, 1969, the Stonewall Riots changed much of that. Police raided a gay bar in Greenwich Village called the Stonewall Inn, and while such raids were not uncommon at that time, the patrons at Stonewall fought back. Many people attribute the Stonewall riots as the beginning of the Gay Rights movement, and the Gay Liberation front was created as riots spread across New York and other cities. Homosexuals rebranded themselves as “Gay,” identifying themselves “with the African American as oppressed and the Black Civil Rights Movement as a means from oppression to liberation.” In the years following, the Gay Rights Movement emerged as a more prominent movement in society, creating changes to the rhetoric referencing homosexuality.