The Terms of the Debate: Litigation, Argumentative Strategies, and Coalitions in the Same-Sex Marriage Debate, 1993-2008

Abstract

Why, in the face of ongoing criticism, do advocates of same-sex marriage continue to pursue litigation? In recent months, Perry v. Schwarzenegger, a challenge to California’s ban on same-sex marriage, and Gill v. Office of Personnel Management, a lawsuit challenging section three of the federal Defense of Marriage Act, have created divisive debate. Leading scholarship and commentary on the litigation of decisions like Perry and Gill have been strongly critical, predicting that it will produce a backlash that will undermine the same-sex marriage cause.

These studies all rely on a particular historical account of past same-sex marriage decisions and their effect on political debate. According to this account, the primary effect of same-sex marriage litigation has been the mobilization of conservative opponents of the cause. Groups like the Family Research Council and Focus on the Family successfully organized efforts to elect opponents of same-sex marriage and to introduce state constitutional bans.

However, the historical account underlying these criticisms of same-sex marriage litigation is fundamentally incomplete. Leading studies have missed important effects that judicial decisions appear to have had on the rhetorical strategies and coalitions that define debate. Partly because of Baker v. State, a Vermont opinion, and Goodridge v. Department of Public Health, a Massachusetts decision, national gay rights groups like the Freedom to Marry Coalition and the Human Rights Campaign began stressing equality-based claims. Socially conservative organizations like the Family Research Council increasingly emphasized religious freedom or parental rights. At the same time, seemingly because of the decisions, alliances shifted. Labor and libertarian groups played a less central role, while civil-rights groups began shaping the alliances on either side. These developments may well prove to be favorable to the same-sex marriage cause.

At this point, it is difficult to assess whether the changes studied here will benefit the same-sex marriage movement in the long term. However, without studying all the effects of same-sex marriage litigation, current conclusions about its value are premature and potentially flawed. Litigation may prove to have been much more strategically advisable than some current scholarship suggests. At the very least, the litigation campaign should be judged not by an incomplete historical account but by an assessment of its full impact. Baker and Goodridge did not simply increase opposition to same-sex marriage. Both decisions also appear to have fundamentally changed the terms of and players in the debate in a way that may have been favorable to the same-sex marriage cause.

Keywords: Legal History, Same-Sex Marriage, Gender, Sexuality and the Law