Category Archives: Movements and the Courts

Predicting the Legal Outcomes on Marriage Equality: What Explains Legal Change Around Civil Liberties?

By Elizabeth E. Martinez

When do social movements use the courts in pursuing their goals? The question might be rewritten to say: assuming that activists will always or often use the courts as one of many strategies, when are they successful in court? When is the law likely to change in response to activist’s lawsuits? This is a pertinent question as we see the U.S. Supreme Court taking up two cases about marriage equality.

One case is about Proposition 8, which took away the right for same-sex couples to marry in California (Hollingsworth v. Perry), and the other case (U.S. v. Windsor) is about the Defense of Marriage Act (DOMA) Continue reading

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Beware of Lawyers Bearing Gifts, or Why Social Movements Should Be Wary of Litigation

By Steven E. Barkan

The U.S. Supreme Court is expected to rule later this spring on issues concerning same-sex marriage. Whatever the Court decides, its decisions will be momentous. This fact brings to mind an intriguing topic in the law and social movement literature for social movement scholars and activists to consider: the degree to which litigation (or legal mobilization, to use a favored term in the literature) is a potentially effective strategy for achieving social movement goals. In view of the impending Court decisions, certain observations, based on a growing body of work by legal and social movement scholars, seem in order. Continue reading

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Social Movement Activism and the Courts

By Siri Gloppen

Will going to court help or harm the cause? This is a burning question for social movements and scholars siding with them. And it should be given careful consideration, in light of socio-legal scholarship suggesting that the “haves” come out ahead in court (Galanter 1974), and that even when social movement litigation succeeds, court victories are “hollow hopes” (Rosenberg 1991) bringing no real change. Fears are not only that it is ineffective and a waste of resources, but also that it may be counterproductive—that courts-centered activism will legitimize the system, circumscribe the struggle in ways that prevent radical challenges to the status quo, and change and de-radicalize the movement itself (Scheingold 1974). Continue reading

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The When, Why, and How of Legal Mobilization

By David Pettinicchio

Social movement scholars have increasingly broadened their view of the role of social movements vis-à-vis institutions and political outcomes– that is, beyond using direct action to challenge authority. The fact that you are reading a short essay about social movements and the courts is a testament to that. As movements became increasingly viewed as part of “everyday politics” and the use of institutionalized tactics more common, not surprisingly, legal mobilization emerged as an area of interest among political sociologists and social movement scholars. Continue reading

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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.  Continue reading

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