Moving Forward Social Causes Through Impact Litigation

This week, as we continue to wait for Congress to act on immigration reform, gun violence prevention and a full slate of other issues, Americans are scratching their heads and wondering if the people we sent to Washington are capable of accomplishing much of anything.

Meanwhile, a block away from the Capitol, the Supreme Court, in just one term, took on four landmark cases with the potential to fundamentally impact our society and answer questions about who we are as a nation.

In June the Court decided cases dealing with affirmative action, our right to vote, and, in two cases, the right to marry the person we love.

Increasingly, it is the courts, not the legislatures, that are taking up issues with the potential to have significant social impact.

The idea isn't new. Brown v. Board of Education was an example of impact litigation, a suit filed to bring significant change to the nation when legislatures prove unwilling or unable to act. Impact litigation presents a chance to change the conversation where ballot measures and bills have hit a wall. It's disruptive, cutting through the noise and the politics and allowing the facts to surface.

More and more, impact litigation is becoming an important tool in our efforts to achieve a more perfect union. Access to the courts -- and the ability to sue in defense of our rights -- has been critical to our evolution as a nation. More than 100 years ago, the Supreme Court deemed access to the judicial system "one of the highest and most essential privileges of citizenship." Political debates and campaigns can be hijacked by misleading advertising and superior rhetoric, but in a courtroom, nothing matters but the facts. Justice Louis Brandeis called sunlight "the best disinfectant"; when light is shed upon the truth, no special interest, no campaign and no rhetoric can change it.

Our firm, Griffin Schein, a social change agency that applies campaign strategies and communications tools to issue advocacy, has had profound experience with impact litigation, having had a front row seat for one of the historic cases before the Supreme Court this term.

When California voters amended the state constitution to eliminate marriage rights for same-sex couples in 2008, our team worked with a group of visionaries, including Chad Griffin, Rob Reiner, Bruce Cohen and Dustin Lance Black, to found the American Foundation for Equal Rights (AFER), the sole sponsor of Perry v. Schwarzenegger (now Hollingsworth v. Perry), the federal case that challenged the constitutionality of Proposition 8.

For the first time, the question of whether gay and lesbian Americans should be able to marry would be answered not in a voting booth or legislative chamber but in a court of law.

Griffin Schein worked with AFER to steer the case through a federal court trial that ended with Prop. 8 being declared unconstitutional, then through the appeals process that culminated in the Supreme Court decision.

Accompanying the lawsuit was a massive public education campaign designed to move public opinion on marriage equality, the result of which has been that a majority of Americans now supports the freedom to marry. As the court weighed their decision in the Perry and DOMA cases, the weight of public opinion removed a potential obstacle to our desired verdict. We cut through the clutter and the noise, leaving only the law and the truth. And Americans embraced that truth.

Supporters of every American's right to marry the person he or she loves could have continued to fight for marriage equality in 50 state legislatures, through initiative processes and referenda. We could have waited until the tides began to turn. But in filing this suit, we knew we had the best chance at the greatest impact. We celebrated the overturning of DOMA and celebrated the marriages of our plaintiffs in Hollingsworth v. Perry in California. And we ready ourselves for the next court fight because we believe that right will be available to all LGBT Americans soon.

Griffin Schein has also helped start another impact litigation case, Vegara v. California, with a supporting nonprofit organization, Students Matter, in hopes of attaining equal access to quality public education for the students of California.

Vergara v. California claims that the current education system fails to provide the quality education -- and the equality in education -- guaranteed to every child under California's constitution and has taken the case to court because meaningful reform has not been able to succeed through the regular political process.

The Students Matter communications and advocacy campaign leverages the lawsuit as a platform to reframe the debate around education reform. The case has been embraced by a broad coalition of parents, students and even educators committed to striking down the harmful state laws that put adult privileges ahead of children's rights.

Each of these cases has already impacted not only the legal but the cultural fabric of our society. Nobody chooses to start in the courts, but when the elected officials are handcuffed by special interests, inertia or fear, as is increasingly the case, impact litigation coupled with a solid communications campaign can be the most efficient and effective driver of social change.