Don't Judge That New Policy By Its Cover

February 20, 2014

Have you ever noticed that new policies sometimes seem to rapidly spread from state to state with each new location passing new laws on an issue that did not even appear to be on the policy agenda until recently? For example, in 1992, two states – Maryland and California—had statutes explicitly prohibiting same sex marriage. A dozen years later in 2004, 37 states had passed laws explicitly prohibiting same sex marriage. Between 1998 and 2012, 31 states subsequently amended their state constitutions to enshrine the same goal.

There are four interesting aspects associated with the rapid spread of new policies and new laws in this manner.

First, contrary to what we might suspect, laws are rarely generated at times when there is (the appearance of) universal agreement on a social norm. During periods of limited challenge, there exists very little incentive for legislatures to prioritize the codification of laws around social norms that, by all appearances, are already manifesting very high compliance rates. Similarly, the absence of rules and laws removes much of the latitude for judicial decision-making that might, under other circumstances, lead to new judge-made rules or new interpretations of existing laws. Without the prompt of sustained, organized, or widespread challenge, these laws disappear into the background in terms of public salience and hence, policy interest. Yet, the lack of such challenge should certainly not be treated as synonymous with the existence of universal agreement with the norm at the time.

Instead, laws tend to be generated mostly when existing norms are under some form of consistent challenge. At such times, states often seek to codify pre-existing norms to enhance the legitimacy and authority of those norms in order to effectively repel the effort to challenge it. And the greater the perceived challenge, the more states are likely to reach for the most powerful versions of laws. Thus, new institutional policies and new administrative rules are often first introduced. These are quickly followed by the introduction of new statutes, if acquiescence is not achieved. Very occasionally, as occurred around the prohibition of same sex marriage, state legislatures and state courts will invoke the more authoritative power of a state constitution in an attempt to quash any future challenge.

Challenge can be sustained and organized through targeted social movement and interest group action. This is the classic model of the NAACP from the 1920s through the 1970s regarding laws that entrenched southern segregationist policies. But challenge can also come in the form of the gradual, widespread drift in social norms away from previous standards. For example, the decline in public compliance with fornication laws over time, the lack of observance of prohibition laws related to alcohol and marijuana usage in recent decades, or even the ability of drivers to turn right on red lights in most locations in the United States.

Second, in the rapid spread of new policies and new laws, some states appear immune to the effect. In the current example, 13 states did not act to pass new policies or new laws prohibiting same sex marriage. And, in fact, many of those same states would eventually act to legalize marriage equality or civil unions. It is a reminder that no matter how strong the norm diffusion, states are largely autonomous actors who can, and often will, chart their own legal path.

Third, the invocation of law within a state is by no means an effective antidote that always thwarts an existing challenge. To date, 13 states that initially adopted legal proscription of same sex marriage have subsequently acted to revoke that proscription and then legalized marriage equality or civil unions.

Social norms have a power of their own—hence their strong linkage to the law. Once the social norm has changed at the elite and/or popular level within a state, it is very difficult for the law to be in contradiction with that norm for any extended period of time: the greater the disjuncture between the current law and the accepted social norm, the greater the likelihood that individuals and institutions are no longer complying with the current law—and the less power that law retains.

Fourth and finally, the rapid spread of laws is often quickly followed by the rapid spread of contrary laws. Since law is often invoked in response to a sustained, organized, or widespread challenge to pre-existing norms, states often find that when they entrench laws, widespread challenge is subsequently successful, such that their state law no longer reflects what has now emerged as the dominant social norm. States can find themselves trapped by this quick transition between positions. Even as 30 states retain state constitutional amendments, 18 states have, to date, legalized marriage equality against a backdrop of increasing support for marriage equality at the national and state levels.

Existing laws, especially those embedded in state constitutions by the constitutional amendment process or by a state court opinion, can act to thwart the enactment of the newly dominant social norm operating in that state. In such cases, federal court opinions, relying on federal constitutional doctrines rather than state constitutional doctrines, can actually liberate state policymakers from this legal trap of their own construction. For example, federal courts acted in this role to remove state prohibitions on consensual sodomy amongst adults. And, presently, federal courts are beginning to intervene in state actions around marriage equality to similar effect.

Overall, the rapid spread of new policies and new laws may be signaling just how significantly they’re being challenged. To be sure, the passage of new laws does not always represent the last word on that policy issue.


Scott Barclay is a Professor in the Department of History & Political Science at Drexel University and Williams Senior Scholar of Public Policy at the Williams Institute, where he focuses on LGBT public opinion-related research. 

photo credit: ‘Playingwithbrushes’ via photopin cc