'Paths to Social Change: Analyses of Decriminalization of Sodomy' by Udi Sommer and Victor Asal
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What variables lead judicial and non-judicial decision-making bodies to introduce policy change? In the theoretical framework proposed, the path dependent nature of law has a differential effect on courts and legislatures. Further, political institutions such as elections and accountability lead those bodies to introduce policy change under dissimilar circumstances. Global trends, however, affect both institutional paths equally. We test this theory with data for the repeal of sodomy laws in all countries from 1972-2002. Results from two disparate multivariate models overwhelmingly confirm our predictions. Uniquely positioned institutionally, courts of last resort are less constrained than legislatures by either legal path dependence or political accountability. Globalization, on the other hand, has an equal effect on both. This work is the first to offer a theoretical framework explaining policy change via different institutional paths, systematically test it comparatively and with respect to a policy issue still on the agenda in many countries.
The authors conclude
The goal of this study was to analyze policy change via different institutional paths. This
question, which has been crucially important in the study of public policy, judicial
politics and social movements, was examined here for the first time systematically in a
cross-national framework over a period of several decades and with respect to a question still on the agenda in the majority of countries, namely the decriminalization of same-sex
sex. While the debate in the literature is still unsettled (Dahl 1957; Funston 1975;
Rosenberg 1991), the theory developed here suggests that policy change emanates from
judicial as well as non-judicial bodies.
The key message of this study, however, is not limited to this notion. Rather, we
explain theoretically and then substantiate empirically that different sets of variables
systematically explain policy change via disparate institutional venues. As such, this
article makes significant contributions to our understanding of a range of topics from law,
legal development and accountability to the effects of religiosity on policy change.
The legalization of sodomy is only one piece of the puzzle. It is important to
recognize that countries where same-sex sexual relations are legal are not necessarily
places where members of the LGBT community are treated equally (Waaldijk 2000).
Legalization of sodomy, hence, is not the ultimate measure of discrimination against
sexual minorities. With that in mind, however, an examination of the repeal of sodomy
laws is key to developing a better understanding of the rights of gays and lesbians crossnationally.
Although legal change may not always precipitate change on the ground (Epp
1996), the repeal of sodomy prohibitions is still a meaningful policy choice that warrants
explanation. While a court decision or a legal measure may fail to translate into full
equality for the minority they aim to protect, such legal change has a declaratory value, is
educational, and provides members of the minority group with venues to claim redress
(Scheingold 2004; Waaldijk 2000; McCann 1994; Zemans 1983).
This work sheds new light on the nature of legal and policy change as well as on
decision making within judicial and non-judicial institutions. More specifically, the path dependent nature of legal development means that law is constituted within the political
system. Accordingly, we argue and then demonstrate, legal precedent in a Common Law
system limits the introduction of policy change via the political branches more than via
courts of last resort, and particularly when such change proves contentious. On the other
hand, legal path dependence in civil law countries makes it easier for policy change to
emanate from the legislature. Indeed, whereas legislative repeal constitutes 97% of the
cases where sodomy laws were revoked in Civil Law countries, 6 in every 10 repeals in
Common Law countries between 1972-2002 were judicial.
This finding lends support to the notion that political actors are more constrained by
precedent than their judicial counterparts and that the effects of path dependence on
decision making in supreme courts are commensurably weaker. More broadly, this
finding also addresses a major criticism leveled against path dependence scholars
concerning their inability to explain policy change. We contend that the judicial
hierarchical structure enables courts of last resort to make policy changes. Indeed, courts
of last resort may serve as important mechanisms of change, a relief valve of sorts, in
theories of path dependence (Kahn 2006).
Furthermore, political institutions such as accountability entail closer proximity
between constituency will and decision making in the political branches. In contrast, we
find courts are less affected by majoritarian elements, as demonstrated by the effect of
religious groups, which is apparent on legislatures, but not on courts. Some forces on the
domestic (e.g., democratic conditions) and global (e.g., globalization) levels affect repeal,
notwithstanding its institutional venue. In a sub-sample of democracies, the effect of democratic conditions is diminished, but the effects of the other predictors remain largely
unaffected.
This work offers some important observations. While contested later (e.g., Funston
1975), Dahl (1957) posits that courts do not operate in a counter-majoritarian fashion.
Consequently, Dahl questions the extent to which courts protect the rights of minority
groups. Along the same lines, Rosenberg (1991) contends that the Supreme Court is a
Hollow Hope for those who seek social change. Dependent on the political branches for
implementation, save for in particular circumstances, courts are not likely venues for
policy innovation. The theory proposed in this study (and its empirical support presented
thereafter) directly engages this scholarship. As far as the protection of sexual minorities
is concerned, the findings in this study indicate that judicial institutions may well be the
ones to extend legal protection. We identify the variables that predict policy making in
each institutional venue, explain their effects, and empirically confirm their systematic
influences. The empirical confirmation is established on data for all the nations in the
world for a period of three decades. It is based on two disparate sets of models
(multinomial logit and GEE time-series cross-sectional regression) estimated separately
for all countries and for democratic countries only. The results of all models are robust
and the support they lend to our hypotheses unyielding.
Under the right circumstances, policy change may originate from courts of last resort.
The political stars align differently in dissimilar jurisdictions; when Common Law and
strong religious constituencies are present in a polity, courts may be the venue of choice
for those seeking social change. Indeed, the Canadian and South African cases described
earlier are but two examples illustrating these dynamics.
As far as predictors of social change are concerned, and in particular in the
context of the rights afforded sexual minorities, the analytical advantage of examining
disparate institutional paths is clear. For instance, despite failures to find effects for
religiosity in past work (e.g., Frank and McEneaney 1999), our theory and empirical tests
illustrate the critical importance of analytically treating disparate institutional paths in
order to accurately assess the effects of independent variables such as religious
constituencies. Further, the emphasis put on institutions (as opposed, for instance, to
social movements) is not unique to this work (e.g., Wald et al. 1996; Cole 2005).
Lastly, this work also offers some empirical predictions to be further developed
and tested in future work. With respect to institutional paths to policy change, future
work may wish to examine the introduction of other policies (related to sexual minorities
or otherwise) via disparate institutional paths. The set of predictors offered in this paper
may account, for instance, for the introduction of anti-discrimination policies in different
countries. While some accounts in the literature claim that, in Europe for instance, the
mere decriminalization of same-sex sex inexorably led to the introduction of antidiscrimination
measures (e.g., Waaldijk 2000), the theory proposed here offers an
alternative analysis. Considering institutional paths of policy change and their respective
predictors including type of legal system, special constituencies, democratic conditions
and globalization, our theory offers a rich framework for scholars studying those
processes. Moving beyond sexual minorities, the findings here may serve future
examinations of policy change relevant to additional minority groups and policy domains.
