Since I am more of a practical lawyer, in that I practice rather than teach, than a theory-based lawyer I do not consider myself an expert in this area. That being said, I have taken some courses, was advised by a Critical Legal Theorist, and I continue to read acacdemic works in these areas. That also being said, because I am not a theorist in the proverbial Ivory Tower of academia I believe that I am an expert (or becoming one) in how these theories relate to people out in the real world.
Critical Legal Theory greatly appealed to me in law school as it gave me a framework to question our legal structure and laws. Women, minorities, and others who are not among privileged classes in this country know intuitively that things in our judicial, legislative, and political systems are amiss. It is more difficult, however, for people to explain why they think or feel this way.
The basic idea behind Critical Legal Theory is this:
"That logic and structure attributed to the law grow out of the power relationships of the society. The law exists to support the interests of the party or class that forms it and is merely a collection of beliefs and prejudices that legitimize the injustices of society. The wealthy and the powerful use the law as an instrument for oppression in order to maintain their place in hierarchy."
In context, this theory holds true from the days of our nation's founding. For instance:
The law exists to support the interests of the party or class that forms it.
During the colonial period a man took absolute possession of his wife's property, estate, and income. Clearly, these laws supported the interests of men, who created and passed these laws. It gave men absolute financial control over their wives, who were considered their property and ensured that women remained a lower class than men.
The wealthy and the powerful use the law as an instrument of oppression in order to maintain their place in heirarchy.
This premise was evident in voting laws during colonial times when only land-owning (white) men were allowed to vote. These laws ensured that relatively wealthy men could maintain and pass laws that benefited them (as opposed to non-wealthy men, all women, and non-white men).
Knowing this, I find it difficult to accept the authority of "the law." Judges base their opinions on case law, legislation, precedent, and stare decisis. The motto of our legal system is to not disturb prior decisions- to leave settled law alone. See how the very motto of our legal system ensures that heirarchies remain in place? And, does anyone else find this motto disturbing in light of our nation's history of discriminating against certain groups?
Is it such a crazy or radical [insert pejorative/feminist/communist] notion that one could find this history as it relates to current events disturbing?
Knowing that white men have been voting in this country for a full 225 years, black men 130 years (in theory, of course), and all women a mere 80, can we fully expect that what we call "the law" to be race and gender neutral now?
Basically, everyone in this country needs to realize that "the law" is neither neutral, blind, nor equal. I am especially ashamed of attorneys who pretend that it is all of these things. They should know better. Unfortunately, law school is not set up to question the very foundations of our legal system. And, owing much thanks to the Socratic method and case method, students are often too scared to question the system.
And often, I find that those who blindly accept the authority of "the law," who deny the premises of Critical Legal Theory, to be the ones who believe they are benefitting from the system. Such people are often also found decrying feminism under the pretext that it "destroys the family" but really because it challenges the historical male-dominant power structure. They can also be found opposing affirmative action because "it's discrimination against white people" but really because it challenges the notion that while all white people belong in higher education it doesn't matter that many people of color don't have access.
And too often in debates and policy discussions, I find that both sides too easily accept "the law" as the final authority on an issue. They recite to each other what the law is, rather than exploring why the law is what it is.
All this being said, I take my oath to uphold the US Constitution seriously. Perhaps more seriously than those who finagle interpretations of the Constitution that reinforce current power structures. I know that the Equal Protection Clause of the US Constitution says that "no state shall deny to any person.... within its jurisdiction the equal protection of laws." I also know that states do deny some people within its jurisdiction the equal protection of laws. I know that states deny equal protection to some groups of persons because of lawyers and politicians and other groups who seek to reinforce existing power structures.
Judges who interpret laws and develop and use Constitutional decisions do it too.
Justices can contrive a "logical" legal argument to suit any predetermined outcome based on their own personal beliefs. If anyone doesn't believe that then I must ask if they care whether a Democrat or Republican is in office when there's a vacancy on the Supreme Court. If anyone doesn't believe that I ask them to predict with 100% accuracy the outcome of every court case.
We should never forget that judges are human and have their own biases, beliefs, and opinions that they bring to every case. No one should pretend that they are neutral decision robots.
On a related note, I find it interesting when conservatives decry "activist judges" (who only seem to be "activist" when making progressive or liberal decisions). These people don't understand that the judicial branch is the one branch of government designed to keep the tyranny of the majority in check. It is the one branch of government that is supposed to protect the rights of minorities. Yet, when it does its job, conservatives denounce the courts for being "un-democratic."
Thinking about Critical Legal Theory in the context of race helped produce the area of study called Critical Race Theory (CRT). CRT challenges racial oppression in non-traditional ways, starting from the premise that racism is so ingrained in our culture that it looks ordinary and natural to the persons in the culture (Delgado, R. and Jean Stefancic, Critical Race Theory, page xvi.). Therefore, our civil rights laws only address the most overt and obvious forms while ignoring the racism we do not perceive. To eradicate racism, then, we have to utilize other forms of political action- action through the Executive branch, through court decisions, and through mass mobilization and demonstrations.
Currently, as I previously wrote, I see protests in conjunction with the Jena 6 case to be a current attempt to raise awareness of racial injustice in the legal system that many people in this country do not see.
This theory, and yes I do realize anti-gay advocates will hate this analogy, is also applicable to the gay rights movement.
Sexual prejudice is so ingrained in our culture that many people don't see it. They don't see it in themselves and they don't see it in other people. Discrimination laws address only the most overt and obvious forms while ignoring the prejudices that some (many?) do not perceive.
When the leading Democratic contenders say that they will support civil unions "but just aren't there yet" with calling it marriage, and that is considered the "liberal" and "accepting" position, we have a problem.
When so-called "marriage defenders" are against hate crimes legislation, same-sex marriage, and adoption for gay couples yet do not consider themselves "bigots," we have a problem.
In short, many people today don't yet get how "marriage defense" is discriminatory to gay people. They don't get how the denial of rights, benefits, and protections to a group of people is bigotry. Because they rationalize it away under the pretext of "saving" something. To them, their abstract and intangible goal of "saving children/defending marriage/preventing the collapse of civilization" by advocating for constitutional amendments to define marriage, advocating for DOMA, and celebrating judicial opinions that deny marital benefits to same-sex families looks natural and ordinary to them. Sexual prejudice is so ingrained in our culture that some of these people refuse to see, or are unable to see, their thoughts and actions for what they are. Bigotry.
It is bigotry (and yes I do have to explain it to some people), because these Don Quixotes are defending marriage and family by advocating for a legal system that causes actual harm to many families. You know, the gay ones. Meanwhile, they do not advocate for laws and policies that would, actually, save marriage/family.
It is bigotry because they ignore all of the ways in which we are similar to them and seek to deny us rights based on the one way in which we are different, and then they accuse us of "identity politics." (Is it shocking to them that a group that is discriminated against would join together and demand equal rights?)
In short, they are using the legal system to maintain a power structure that places heterosexual families at the top.
Meanwhile, we seek to use the legal system to say that our families are equal to theirs, and they accuse us asking for "special rights."
We have a problem because, as Pam Spaulding says, "bigot" is a "radioactive word" and "nothing shuts down the conversation or draws a line in the sand faster."
It's true, of course. No one wants to be labeled a bigot. The B Word brings up connotations of white hoods, lynchings, and invidious racial discrimination.
People don't want to be associated with that word, because they can't equate their current thoughts and actions with those of the people that history has judged to be bigoted and wrong.
And so, as Pam mentions when Michael Richards repeatedly called a black audience member the n-word, he later explained:
"I'm not a racist. That's what's so insane about this," Richards said, his tone becoming angry and frustrated as he defended himself.
By referring to this incident, Pam demonstrates the great lengths some people will go to avoid being labeled a "bigot" even though their words and actions show nothing but bigotry.
It's okay, in other words, to act and think like a bigot... as long as you aren't called out on it. It's okay to hold beliefs that seem normal to you, as long as other people don't call these beliefs bigoted.
So here, I'm torn.
It isn't helpful these days to "draw a line in the sand" by using the B Word. It stops a discussion. It stops dialogue.
But, how else do you make people realize that they are bigots without calling them the B Word? How else do you make them see that history will prove them wrong, too?
I think that people who act like bigots should be called out on it. If they're going to publicly advocate for laws that harm my loved ones, my family, my community, and myself they should stand behind their bold words and accept the, in comparison, non-harmful fact that some people are going to call them bigots.
We must make people aware of why they are bigots. When looking at new and old legislation and opinions, we must look through the lens of Critical Legal Theory. Because, in a society where sexual prejudice is entrenched, bigoted thoughts and behavior can appear normal to the holders of bigoted beliefs.
And, to remain silent in the face of bigotry is to condone it. When all anti-gay advocates truly have to fear is the word "bigot" and what we have to fear is so much more..... I find it difficult to conjure sympathy for them.
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