Legal Mobilization and Policy Enforcement: A Tale of Two Policies and Two Movements?

Scholars have long debated the role of social movements in changing policy outcomes – whether and how do they matter. Policies can also create political opportunities for social movements. Policies empower historically disadvantaged groups and provide them with the tools and resources to mobilize their rights. Indeed, as David Meyer put it, scholars often grapple with the “chicken-and-egg” problem of policy and mobilization; that is, which comes first? Thinking about this alleged paradox raises questions about the role of social movements following legislative “victories.”

Reproductive Rights, the Supreme Court, and Institutionalization

The most recent Hobby Lobby decision reminded me of previous cases where the Supreme Court adjudicated whether federal and state funding could be used for abortions (Harris v. McRae and Williams v. Zbaras). In 1980 the Supreme Court heard two cases related to the Hyde Amendment of 1976. The Hyde Amendment is a “rider” type of legislation that prohibits federal funding of abortion when it is medically “unnecessary.” In both cases the Court affirmed the law. Scholars of the abortion debate often view the passage of this law and the Court’s support as a critical historical juncture (Ferree, Gamson, Gerhards, and Rucht 2002; Staggenborg 1989). Both the Hyde legislation and the Court’s affirmation represent the first major anti-abortion successes following the Roe v. Wade case (1973). The Roe v. Wade decision was a landmark success for the abortion-rights movement, and the victory sparked a countermobilization that was strong and effective at challenging abortion rights activists (Meyer and Staggenborg 1996). Given the most recent Hobby Lobby decision, the tangible benefits of Roe v. Wade may come into question. 

Direct and Indirect Challenges to the Pipeline

Over the course of the last two years, two pipeline projects – Northern Gateway and Keystone – have generated opposition from environmental groups in both the U.S. and Canada. As Rennie of the Canadian Press (June 17) notes, the pipelines have become highly political in both countries. In an article I wrote for Critical Mass, I mentioned that in the U.S., the Keystone pipeline project has posed a problem for President Obama and the Democrats given that environmentalists are against its construction while many others see it as creating jobs. There has been a tremendous push in Congress to get Obama to sign legislation that would allow for Keystone’s construction on the one hand, and Democrats hoping that Obama would veto such a bill on the other. Nonetheless, policy experts seem to believe that the Keystone project would inevitably move forward – if Canada is building a pipeline anyway, why shouldn’t Americans benefit from it? In fact, earlier polls did show that the American public thought energy security was a more important issue than greenhouse gases and a majority favored the pipeline’s construction (although the saliency of the issue among the public has likely varied greatly over the last year).

An anti-gay marriage movement?

Following the U.S. Supreme Court’s recent decision to strike down the Defense of Marriage Act (DOMA), should we expect a strong backlash from opponents of gay marriage? If so, what will this backlash look like? Right now, we have heard statements from a few key opponents – from Michelle Bachmann to Mike Huckabee. But will opposition grow into a full-scale countermovement, especially as state legislatures increasingly become the site of the gay marriage conflict? I also ask this question in light of the recent French example where the legalization of gay marriage led to significant involvement of both grassroots and elite elements (albeit motivated by different grievances) converging to attack the Hollande government’s legalization of same-sex marriage.

Supporters of gay marriage celebrate after the U.S. Supreme Court overturned the Defense of Marriage Act and declined to rule on the California law Proposition 8 in Washington, D.C., U.S. on Wednesday, June 26, 2013. Photographer: Joshua Roberts/Bloomberg

Countermobilization in France around the recent legalization of gay marriage raises several key issues. First, despite the fact that it was well known to activists that protests would not deter the French government from going through with the legislation, protests grew increasingly more intense and continued to do so following the legislation. Second, as I noted in a previous post, it became increasingly clear that what has people mobilized is not so much the right of gays and lesbians to marry but rather, the part of the legislation that deals with assisted procreation and surrogate motherhood for gay couples.

Is Marriage Equality Bourgeois? Separating a social movement from a social movement organization

I was camping over spring break when I used my smartphone to log onto Facebook and post some photos. As I scrolled down through my feed, I noticed that a number of people had changed their profile photos to the now iconic Human Rights Campaign  (HRC) logo.

Having been digitally disconnected for a few days, I asked my partner what it was, and he said that it was in support of the marriage equality case being heard in front of the Supreme Court (SCOTUS). As a social media and social movement scholar, I was intrigued by all of the permutations of the image, similar to other Internet memes of social movement moments, such as that of the UC Davis pepper spraying.

Designed by Andrei Boutyline, UC Berkeley

When I returned from my trip, I began to follow some critiques of this social media marriage equality SCOTUS campaign, including a blog post, Six things that happened while y’all were pre-occupied with gay marriage,”  by Mia McKenzie, who contends that this campaign is narrow, a privilege of the rich, and does not address class and race LGBT inequalities.

“Gayxtremism” in France?

In an earlier post, I wrote about the importance of the intersection of cultural and institutional factors in understanding the cross-national politics of marriage equality. One important part of this context is attitudinal shifts regarding gay marriage. According to a PEW survey, American public opinion has moved markedly in support of gay marriage in the four years since California’s Proposition 8. Recent U.S. Supreme Court hearings have brought out demonstrators on both sides of the debate. On a CNN international report (March 27, 2013), one opponent of gay marriage proclaimed that this is an issue for the people, not the court. According to Jeff Toobin of CNN, conservative justices have recognized the “growing popularity” of gay marriage and have argued in favor of using the democratic process (especially at the state level) rather than the non-elected judiciary.

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)

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.

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.