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The Politics of Court Driven Morality Policy: a Comparative Analysis of Abortion and Same-Sex Marriage 1971-2015 By: Korey Hughes

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The Politics of Court Driven Morality Policy: a Comparative Analysis of Abortion and Same-Sex Marriage 1971-2015 By: Korey Hughes City University of New York (CUNY) CUNY Academic Works Dissertations, Theses, and Capstone Projects Graduate Center 2-2016 The olitP ics of Court Driven Morality Policy: A Comparative Analysis of Abortion and Same-Sex Marriage 1971-2015 Korey L. Hughes Graduate Center, City University of New York How does access to this work benefit ou?y Let us know! Follow this and additional works at: https://academicworks.cuny.edu/gc_etds Part of the American Politics Commons Recommended Citation Hughes, Korey L., "The oP litics of Court Driven Morality Policy: A Comparative Analysis of Abortion and Same-Sex Marriage 1971-2015" (2016). CUNY Academic Works. https://academicworks.cuny.edu/gc_etds/769 This Dissertation is brought to you by CUNY Academic Works. It has been accepted for inclusion in All Dissertations, Theses, and Capstone Projects by an authorized administrator of CUNY Academic Works. For more information, please contact [email protected]. The Politics of Court Driven Morality Policy: A Comparative Analysis of Abortion and Same-Sex Marriage 1971-2015 by: Korey Hughes A dissertation submitted to the Graduate Faculty in Political Science in partial fulfillment of the requirements for the degree of Doctor of Philosophy, The City University of New York 2016 © 2016 KOREY HUGHES All Rights Reserved ii This manuscript has been read and accepted for the Graduate Faculty in Political Science in satisfaction of the dissertation requirement for the degree of Doctor of Philosophy. Thomas Halper ________ _________________________________________ Date Chair or Examing Committee Alyson Cole ________ ___________________________________________ Date Executive Officer ____________________________________ Alan DiGaetano ____________________________________ Charles Tien ____________________________________ Supervision Committee THE CITY UNIVERSITY OF NEW YORK iii Abstract: The Politics of Court Driven Morality Policy: A Comparative Analysis of Abortion and Same-Sex Marriage 1971-2015 Advisor: Professor Thomas Halper My dissertation had two principal components. First was the development of an argument outlining the five critical differences between abortion and same-sex marriage policy, which highlight the current insufficiency of the existing morality politics framework. These differences were: the duration of the issue, whether it demonstrated an incrementalist of a punctuated equilibrium theory of policy change, the scope of conflict, the degree of institutional entrenchment within the two parties, and the social construction of stakeholders. I then advanced five hypotheses to explain why these differences between the two policy areas in both process and outcome existed, for the purpose of providing greater analytical clarity of my two cases and for developing a larger theory of morality policy outcomes. Abortion and same-sex marriage policy trajectories diverged due to variation in when the issues were nationalized, the prevalence of the targeted group/behavior, complexity of policy implementation, partisan strategy and whether the legal opportunity structure encourages repeat players. I argue that rather than propounding a general theory of morality policy that lumps all morality policies together, a more useful classification scheme would be to create a two-part typology of morality policy that distinguished between moral conflicts, of which abortion would be an example, and moral panics, of which same-sex marriage would be an example. iv Acknowledgments I would like to start by offering thanks to my amazing advisor Prof. Halper. He offered me endless kindness and encouragement throughout this process. His lightning fast responses to my many drafts and emails were incredibly impressive. I have to thank him for being so pivotal to my development as a scholar, and for the well timed Law and Order jokes. Every student should be so lucky to have such an advisor. My committee members Prof. DiGaetano and Prof. Tien were a great help to me. I thank them for their time and assistance. My husband Jack has stood by my side for almost my entire adult life, from the time graduate school was a hazily imagined part of my future to the conclusion of this dissertation. No words are adequate to capture the depth of love and respect I have for a life partner who has given me so much. Jack always intuitively knew when I needed to talk about my dissertation at great length, and when I needed to talk about anything but. I could never have done this without him. In my wildest dreams I could not have imagined such a great husband. I also could have never done this without my parents Michael and Kathy. My father gave me a love of reading and a love of politics, which were both essential to completing this project. No person has had greater influence over my intellectual development. There is little of me that I can't trace back to his influence. I am lucky enough to have a very close relationship with my mother as well. We share common interests both highbrow (politics) and lowbrow (TLC reality television, Lifetime movies). I have the luxury of knowing I can discuss anything with my mother at any time and I would feel completely lost and adrift without her (many) phone calls. I was so fortunate to gain my “other mother” Florence when I met my husband. I have known my mother-in-law for so long and so intimately sometimes I forget she hasn't actually raised me from birth. Having lived with her for five years, I can attest that her generosity is boundless. A political v science acknowledgments page would not be complete without a dedication to a woman who used to order physical copies of legislation from C-SPAN in the pre-internet era. I am thankful for the friendship of Ashley, Matt, Matt, Andrew, and Heather. The years of meals, movies, games and most importantly conversations we've shared have been and remain invaluable to me. vi Table of Contents Abstract.................................................................................................................................................... iv Acknowledgments.................................................................................................................................... v Chapter One: Introduction........................................................................................................................ 1 Chapter Two: The Judicial Politics of Abortion...................................................................................... 34 Chapter Three: The Judicial Politics of Same-sex-marriage................................................................... 70 Chapter Four: The Legislative Politics of Abortion.............................................................................. 117 Chapter Five: The Legislative Politics of Same-sex-marriage............................................................. 145 Chapter Six: Conclusion...................................................................................................................... 176 Table of Cases....................................................................................................................................... 191 Table of Bills......................................................................................................................................... 196 Bibliography.......................................................................................................................................... 197 vii Chapter One: Introduction Informed by Lowi's assertion in “Four Politics of Policy, Politics and Choice” (1972) that policies determine politics, over the past twenty-five years scholars have analyzed the distinctive attributes and political patterns of what is referred to as morality policy (Meier 1994, 1999, Oldmixon 2005, Hunter 1991, Roh and Berry 2008). Morality policy has been conceptualized as a discrete policy area with unique policy dynamics. In these accounts, morality policy is defined as involving a clash between fundamentally irreconcilable worldviews. Additionally, morality policy is considered non- technical in nature, carries strong symbolic resonance, and is characterized by low barriers to citizen interest/participation. Mooney, who has written extensively on morality policy, offers four related predictions based on this definition: that morality policy will be defined by low levels of compromise, widespread citizen participation, high public salience, and technical simplicity (Mooney 1995, 2001, 2008). This literature has produced a volume of case studies of individual morality policies, models of how morality policies operate, studies of what motivates individuals and politicians to take the stances on morality policies that they do, and analyses of how moral conflict shapes elections and partisan attachments. As fruitful as this line of scholarly inquiry has been, significant gaps remain within the morality policy literature. This dissertation seeks to help fill one of those gaps by developing a model that explores why there are two very different sorts of morality policies in American politics: moral conflicts and moral panics, using observations drawn from process tracing two policy case studies, abortion and same-sex marriage. If one accepts the proposition that morality policy may be seen as its own policy area, abortion and same-sex marriage are both undoubtedly morality policies. Yet the political dynamics in these two fields have proceeded quite differently. My argument is two fold. First, I argue that rather than viewing
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