Below the Radar: Litigation and the Advancement of Same-Sex Parental Rights

Abstract

This project explores the conditions under which court-focused strategies for pursuing civil rights successfully avoid backlash. Recent scholarship on the role of the judiciary in advancing the claims of disadvantaged groups has remained skeptical about the potential for court decisions to produce social change without confronting significant opposition. In the absence of the “sword and the purse” argue these scholars, judges and courts who attempt to advance the claims of unpopular minorities are vulnerable to opposition movements that can use majoritarian institutions such as the legislature or the ballot process to thwart these efforts. Scholars look to abortion, school desegregation, and most recently gay marriage to support their misgivings about judicially created civil rights (Rosenberg 1991, 2008). The project starts from the premise that much of the literature on backlash to court decisions ignores the many instances where disenfranchised minorities make measurable gains through the courts and have successfully withstood backlash. This literature, I argue, suffers from two problems. First, by focusing almost exclusively on constitutional issues, the scholars miss an opportunity to explore the transformative potential of statutory, administrative, or common law claims. (Melnick 1994) While large constitutional victories such as abortion and school desegregation are important examples of the courts’ foray into civil rights they are by no means representative. Second, and relatedly, in treating court-centered strategies as a one-size-fits-all approach, these scholars ignore many of the strategic choices made by interest groups and activists deliberately designed to avoid backlash. This paper, part of a larger project exploring several instances where interest groups and activists have deliberately adopted low profile strategies in concert with litigation to advance rights, focuses on efforts to protect relationships between gay and lesbian parents and their children. Advocates rely on specific frames and legal arguments to keep their issue off the public agenda, thereby diminishing the risk of backlash.

Keywords: same sex adoption, same sex parenting, courts, rights, legal frames, statutory interpretation, same sex marriage

JEL Classification: K40, K41