To Have and to Uphold: The Common Language of Status-Preserving Countermovements

Abstract

This Article argues that countermovements intended to preserve existing status regimes share a common argumentative structure: the transformative framework. I begin by outlining existing legal scholarship on countermovements, most significantly Bill Eskridge's work on the antigay movement and Reva Siegel's theory of preservation through transformation. I then introduce the transformative framework, which posits that countermovements proceed through three distinct types of rhetoric--religious natural law, medical utilitarian, and social republican. I then apply the framework to a series of case studies from Reconstruction Alabama and pre-Loving Virginia. I conclude that countermovements adapt over time in a predictable pattern, a discovery which may help movements respond more readily to their opponents.

Keywords: interracial marriage, anti-miscegenation laws, miscegenation, rhetoric, movement, countermovement, traditional family values, preservation, preservation through transformation, status regime, social hierarchy, race, norms, homosexuality

JEL Classification: Z00, K00, K19, K10, K19, K30, K39