Same-Sex Marriage Reaches the High Court: Comments on Law and the LGBT Movement

By Nicholas Pedriana

In December of last year, the Supreme Court announced that it would hear two cases involving same-sex marriage.  One case challenges the constitutionality of the Defense of Marriage Act (DOMA), the 1996 statute that defines marriage—for federal benefits purposes—as one man and one woman.  The other case challenges the constitutionality of California’s Proposition 8 that prohibits same-sex marriage in the nation’s largest state, and which could result in a revolutionary, across-the-board ruling requiring all states to recognize same-sex unions.

Given where things stood just 10 to 12 years ago, the very possibility that the Supreme Court might consider legalizing same-sex marriage is nothing short of astounding.  It speaks volumes about how much the LGBT movement has accomplished—politically, legally, and culturally—in a remarkably short period of time.  And a steady sequence of major court victories (in state and federal court) is among the highlights.  For this reason, the LGBT movement’s recent legal successes commands the attention of social movement scholars, particularly those who puzzle over how, to what extent, and with what consequences activists mobilize courts and other legal institutions in pursuit of movement objectives.

That most social movements include litigation among their tactical options is not in dispute.  What is in dispute is whether and the extent to which legal tactics and/or legal “victories” translate into meaningful progressive reform, particularly for disadvantaged social groups.  To somewhat overstate the point, socio-legal scholars fall into two general camps: “skeptics” and, for lack of a better phrase, “conditional optimists.”  Marc Galanter’s famous (1974) article “Why the Haves Come Out Ahead” argued that litigation systematically favors the most powerful “repeat players”—corporations and the state, for example—over “one shot” litigation by individuals or groups claiming discrimination, denial of rights or entitlements, etc.  Social movement litigants may win the occasional case, but overall the odds are stacked against them.

Gerald Rosenberg’s seminal book The Hollow Hope (1991) perhaps best articulated the skeptics’ perspective.  Rosenberg argued that legal victories—even major victories like Brown v. Board of Education—do little to actually produce substantive change.  Court rulings tend to reduce complicated issues of inequality and injustice to narrowly drawn legal questions; remedies tend to be limited in scope; and courts lack the institutional authority and capacity to enforce their own rulings.  Rosenberg thus concluded that courts present a “hollow” means through which reformers pursue progressive change, and further concluded that the best hope rests with Congress and enactment of major legislation.  In other words, fewer Brown v. Boards, more Civil Rights Acts of 1964 or Voting Rights Acts of 1965.

Conditional optimists concede that repeat players have institutional advantage and they acknowledge that legal rulings are often limited in their substantive impact.  But they also take a somewhat broader view of the relationship between law and social reform movements claiming that, under some conditions, litigation can contribute to a movement’s fortunes (or retrenchment) in the long term.  Rather than focusing on direct causal links (or lack thereof) between judicial opinions and substantive reform, conditional optimists look at law’s resource value as a recruitment and mobilization tool; as a political opportunity structure that enables and constrains collective action; and as a set of legitimating scripts and cultural frames that contribute to identity formation and which often resonate with both activists and bystanders.  McCann’s (1994) study of the 1980s pay equity movement; Pedriana and Stryker’s (2004) article on equal employment law and state capacity; Pedriana’s (2006) piece on legal framing by the women’s movement; and Andersen’s (2005) book on the LGBT movement’s use of the courts are typical examples of this line of research.

Recent legal victories by the LGBT movement reengage and challenge these scholarly traditions.  To be sure, the list is an impressive one.  The Supreme Court and many state courts have struck down anti-LGBT laws on the basis of the equal protection clause and the right to privacy.  For example, in 1996 the Supreme Court ruled that a state may not amend its constitution to single out LGBT people for discrimination, powerfully quoting from an older case that “the bare desire to harm a politically unpopular group” violates the equal protection clause.  In 2003, the Court struck down all remaining sodomy laws as a violation of the constitutional right to privacy.  These rulings, along with similar rulings by state courts have most certainly begun to chip away significantly at many of the more glaring examples of LGBT discrimination involving divorce and parental custody, adoption, medical decision making, etc.  They are the basis upon which nine states now recognize same-sex marriage.  And of course similar litigation has accompanied the recent repeal of Don’t Ask Don’t Tell (DADT) as well as the two pending Supreme Court cases on DOMA and same-sex marriage.  Law has clearly yielded some good things for the LGBT movement and may be about to yield greater things.

Still, whether or not one can definitively conclude that the LGBT movement’s recent court victories have, by themselves, directly expanded the rights and life-chances of LGBT individuals, is in some ways beside the point.  As Andersen (2005) and others have clearly shown, while litigation has always been a tactical pillar of the LGBT movement, court victories have coincided and entangled with rapid pro-LGBT changes in other major societal institutions such as large employers, universities, the military, state legislatures, and popular culture.  American public opinion has recently (but clearly) broken in favor of LGBT rights generally, and same-sex marriage specifically.  This suggests that litigation tactics, particularly when combined with other LGBT tactics and activities (education efforts, direct action protest, lobbying, voting drives, etc.) have created something of an interactive feedback loop.  Each push forward further publicizes and inserts LGBT issues into the cultural and institutional mainstream and each court victory partly reflects and partly reinforces the nation’s changing sensibilities.

Finally, by commandeering the linguistic and symbolic staples of law and legal rights—claims to equality of opportunity, freedom, etc.—the LGBT movement has skillfully framed and diffused it grievances and objectives by mobilizing culturally resonant ideas and values.  Taken all together, and whatever the Supreme Court rules (or doesn’t rule) in several months, the net result has been an invigorated LGBT movement that has expanded its recruitment, resources, and legitimacy with both lawmakers and the public.  For law and social movement scholars, particularly the conditional optimists, this is precisely what we might expect.  And while disentangling the myriad connections between legal institutions, legal tactics, and social movements continues to occupy researchers, the current LGBT case will significantly inform those efforts well into the future.

References

Andersen, Ellen Ann.  2005.  Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation.  University of Michigan Press.

Galanter,  Marc. 1974. “Why the Haves Come Out Ahead: Speculations  on the Limits of Social Change.” Law and Society Review 9: 95-160.

McCann, Michael. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago: University of Chicago Press.

Pedriana, Nicholas.  2006.  “From Protective to Equal Treatment: Legal Framing Processes and Transformation of the Women’s Movement.”  American Journal of Sociology 111: 1718-61.

Pedriana, Nicholas and Robin Stryker.  2004.  The Strength of a Weak Agency: Title VII of the 1964 Civil Rights Act and Expansion of State Capacity 1965-71.”  American Journal of Sociology 110: 709-60.

Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring about Social Change?  Chicago: University of Chicago Press.

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Filed under Essay Dialogues, Movements and the Courts

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