A Tocqueville effect: the legitimizing force of public opinion

Monday it became possible for my lesbian cousin in New Jersey to get married to her long time partner. They've been campaigning for the right and they have two kids, so I imagine they'll get legally hitched soon. Nine million more U.S. citizens live in a state where gay marriage is legal as of today -- the advancing tide of marriage equality sweeps onward.

The recent on-rushing advance of gay marriage equality feels a bit of a mystery to me. The arc of the universe may bend toward justice, but this development seems more like an avalanche of good news than the sort of painful steady progress that has marked other struggles. It took literally hundreds of years for European societies to repudiate human slavery and we're still struggling with the institution's progeny: discrimination, extreme inequality and unequal access to law and justice. Struggles over gay rights aren't over these days, but the direction of things seems unmistakable; it is the hold-outs who will be on the defensive for the next few years, not the LGBT people. How very strange and wonderful this feels!

Not surprisingly Andrew Sullivan pointed to a fascinating observation on the subject from one of his conservative friends, Jonathan Rauch. Consider what Rauch calls the Tocqueville effect:

Alexis de Tocqueville, the Frenchman whose observations of America in the 1830s remain shrewdly relevant, famously remarked on Americans’ deference to majority opinion: “As long as the majority is still undecided, discussion is carried on; but as soon as its decision is irrevocably pronounced, everyone is silent, and the friends as well as the opponents of the measure unite in assenting to its propriety.” Although he exaggerates, the broad point remains true: the legitimising effect of public opinion is such that, other things being equal, majority support tends to amplify itself. Even if I have doubts about gay marriage, the fact that most of my countrymen are on the other side weakens my resolve and impels me to acknowledge the legitimacy of their view. The difference between support at, say, 55 per cent versus 45 per cent — that is, the different between majority and minority standing — is one of kind, not merely of degree. That is not to say that opposition evaporates or crawls under a rock when it loses majority standing. But its power and relevance are greatly reduced.

… Not all Americans, of course, have come to see homosexuality as mundane or benign. But not all needed to. What mattered is the “swing vote”, the moderates who were never deeply attached to an anti-gay agenda on ideological or religious grounds, but who had not in the past been comfortable with the idea of homosexuality. Their crossing over has been the engine of rapid recent change; and it has been the personal, more than the political, which has led them across.

This rings true to me -- Rauch's "Tocqueville effect" seems a useful descriptor of what we're living through in regard to LGBT marriage.

It is then interesting to look at other matters of contention and see whether a Tocqueville effect, the accumulating force of majority public opinion that delegitimizes continued opposition, has been or could be operative.

In regard to U.S. racism, it is not hard to say "yes" … or "no." It is no longer publicly acceptable in most of the country to express the most stereotypical personal racial prejudices -- to use the "N word" for example. Public opinion against verbal bigotry has jelled. But the Trayvon Martin and Jonathan Farrell killings indicate that African American males can be shot based on radicalized suspicions with relative impunity for the shooters.

Perhaps even more problematically, 83 percent of non-Hispanic whites believe that the reason African Americans have worse jobs, incomes and housing than whites is "something else" rather than discrimination. So I might conclude that in the case of persistent systemic racism, the Tocqueville effect has changed what public opinion allows most people to believe, but fails to confront the reality of extreme economic divergence between blacks and whites.

Let's look at full equality for women. The changes in public opinion about the roles and rights of women in my lifetime have been extraordinary. Young women strive for education and expect to work in jobs no worse than those of men. Majority public opinion affirms these realities and even has led to some infrastructure that supports these expectations. We recognize that women sometimes need protection from the men in their lives; hence women's shelters and stringent reporting requirements for police departments (sometimes even complied with.) We have considerable anti-discrimination law, though we never won an Equal Rights Amendment.

Yet women still routinely make less money than equivalently qualified males, do most child rearing and house work, and run into ceilings on our advancement. Majority public opinion has never quite affirmed a strong right of all women to control our own sexuality and reproductive capacity, hence abortion decisions, sex education, and even access to contraception remain contested.

Clearly in the arenas of race and gender equality, there has been something like a Tocqueville effect. At the same time, what can be won through changed public opinion can only carry a group that has been excluded so far. Gay people are definitely on a roll toward legal recognition of gay marriage. But where will we run into the limits of the changes that can be institutionalized through widespread changes in public opinion?

Will gay advances hit a limit when we seek to be included in employment discrimination law? Maybe. Or will our limit come over gender presentation, the fact that we are "queer" and some of us simply can't fit ourselves into conventional gender boxes? California may have a test of the latter limit in 2014 -- the anti-gay marriage forces have turned their attention to our new law, the School Success and Opportunity Act , which protects the rights of transgender students. They are currently shopping a ballot initiative to repeal these protections.

Will we ever achieve a Tocqueville effect for the idea that voting on the rights of minorities is not acceptable democratic conduct? Now that would be a breakthrough ...