37526 chp_19-1 Sheet No. 116 Side A 03/15/2016 15:53:04 4 5 challenges challenges , http://ballot 2/21/2016 PM2:31 . 207 (2001).. 207 judicial ERSP (2012). .P OX ALLOTPEDIA B The Political Limitsof the OC , B , 44 S ALLOT B This initiative was one of was one of This initiative * 2 Kathleen E. Hull, Hull, E. Kathleen , https://ballotpedia.org/2012_ballot_measures IGHTS AT THE 219 R AY AY NTRODUCTION , G Amy L. Stone L. Amy I Id. ALLOTPEDIA See generally generally See TONE overturned same-sex marriage bans across bans across marriage same-sex overturned Ballot Measures Measures Ballot that state bans on same-sex marriage are are marriage same-sex bans on state that These same-sex marriage bans fit into a a into bans fit marriage same-sex These 3 L. S MY A Over 100 additional been referendums have and initiatives attempted but Obergefell Obergefell This case directly overturned the Ohio Definition of of Definition Ohio the overturned directly case This 1 Extra-Legal Consequences of Anti-gay of Consequences Extra-Legal See generally See generally Ohio Definition ofOhio Marriage, Definition 1 (2004) Amendment B Measures, Ballot 2012 id. See Associate Professor, Trinity University Department of Sociology and Anthropology. Anthropology. and of Sociology Department University Trinity Professor, Associate Hodges, Obergefell2584, v. 2607–08 (2015). Ct. 135 S. On June 26, 2015, the United States Supreme Court held in Supreme the United States On June 26, 2015, Since 1974, there have been over 175 ballot measures on on measures 175 ballot been over have Since 1974, there * 2 3 4 5 1 M K Rethinking the Tyranny of the Majority: The The Majority: of the Tyranny the Rethinking Obergefell v. Hodges v. Obergefell the across marriage same-sex legalizing unconstitutional, country. thirty ballot measures since 1998 that explicitly restricted restricted explicitly 1998 that since measures thirty ballot ballot In addition, female.” and male one of “union to a marriage and Washington, Maine, Hawaii, like states in measures same-sex marriage veto existing to voters Maryland permitted against laws to make new the legislature permit laws or marriage. same-sex Although Although or municipal referendums on are typically measures These ballot Marriage Amendment, a 2004 initiated constitutional constitutional initiated a 2004 Amendment, Marriage voters passed. of that 61% amendment history of ballot measures on lesbian, gay, bisexual, and bisexual, and gay, on lesbian, measures ballot history of in the mid-1970s. rightsthat began (LGBT) transgender have been unsuccessful in making it to the ballot box due to pre-ballottodue box ballot the to it making in unsuccessful been have Ph.D. 2006, University of Michigan. B.A. 1998, Amherst College. My research on anti-gayon My research College. 1998, Amherst B.A. of Michigan. University Ph.D. 2006, Phil Zwickler the from funding without possible been have not would ballot measures University. Trinity and Grant Research Memorial collection. petition ineffectual or [https://perma.cc/85LG-M8FL]. RightsFrame: The Case for Same-Sex Marriage Hawaii in Do Not DeleteDo pedia.org/Ohio_Definition_of_Marriage,_Amendment_1_%282004%29 [http://perma.cc/HU S2-XZ9N]. the country, other anti-gay and anti-transgender ballot measures measures ballot and anti-transgender anti-gay other the country, States. United the in persist levels.state and county, municipal, town, the at LGBT rights C Y 37526 chp_19-1 Sheet No. 116 Side A 03/15/2016 15:53:04 A 03/15/2016 116 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 116 Side B 03/15/2016 15:53:04 M K 6 C Y 3/5/2016 12:033/5/2016 PM [Vol. 19:1 [Vol. Although many of these these of many Although 9 7 note 4. supra supra , Chapman Law Review Law Chapman TONE S (documenting the number of ballot measures initiated by the LGBT by the LGBT initiated measures of ballot number the (documenting Between 1974 and 2012, almost 70% of these ballot these ballot of Between70% almost 1974 and 2012, 8 Id. See generally with author). file chart) (on (unpublished Measure of Ballot Subject Stone, L. Amy Id. See id. Second, this Article pushes beyond the question of legal question of legal the beyond pushes this Article Second, of anti-gay history provide a brief will of this Article Part I of anti-gay in the study questions There are two central 6 7 8 9 Almost a quarter of the additional ballot measures are are measures ballot additional the of Almost a quarter future to restrict intending initiatives legal-restrictive for support government eliminate and laws nondiscrimination more broadly. homosexuality community). community). 220 Do Not DeleteDo statewide nondiscrimination laws (40%) and ballot measures measures ballot and (40%) laws nondiscrimination statewide (31%). marriage same-sex or partnerships about domestic measures are challenged in post-ballot judicial review, the high high the review, judicial in post-ballot challenged are measures for the tyranny as evidence is used said measures rate of passage rights. LGBT for democracy direct of anti-gay ballot of consequences to the extra-legal tyranny the in community the LGBT impact measures Ballot measures. and movement, LGBT the broader state, or municipality affected individuals. and bisexual gay, of lesbian, health the psychological for call that arguments existing the I extend Article, In this to argue and initiatives of referendums scrutiny judicial stricter measures anti-gay ballot of understanding holistic more for a on democracy of direct impact for the extra-legal that accounts that I argue and individual. movement, the LGBT community, in do not result and initiatives referendums even when these LGBT the tyrannize they box, ballot the at outcomes anti-gay community. legal the consider II will to 2012. Part 1974 from ballot measures are measures ballot these or not whether on literature and movement, analyze the community, Part III will tyrannical. measures. ballot these of consequences psychological ballot measures. First, there is the question of whether these these whether of question the is there First, measures. ballot due to the tyranny are majoritarian and initiatives referendums civil rights. on ballot measures of rate low passage actors movement conservative organized Disproportionately, rights, although LGBT oppose to measures ballot these sponsor referred legislatively were bans marriage same-sex many a vote on their propose organizers LGBT Rarely do initiatives. rights. measures resulted in either the repeal of a LGBT rights law or of a LGBT rights law or the repeal in either resulted measures anti-gay law. a new of the creation 37526 chp_19-1 Sheet No. 116 Side B 03/15/2016 15:53:04 B 03/15/2016 116 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 117 Side A 03/15/2016 15:53:04 , AND , UBLIC UBLIC OCIETY S ARDISTY ELIGIOUS ELIGIOUS HRISTIAN H R ,P C ESBIAN IRCH 2/21/2016 PM2:31 IVES EAN B ,L OVEMENTS AND J Mary Bernstein, Bernstein, Mary L M AY OW THE G OHN By 1974, the 221 221 J ,H (1997). 10 ING RIVATE RIVATE -W ISION AND THE EASURES ETNER V F 13 See generally See generally M IGHT See generally generally See ., P the development of the of the the development INA OMMUNITIES :R 15 , C TRUGGLE OVER S RTHODOX ALLOT ALLOT HE B :O (2005); T OMINION ESURGENCE FROM THE ,T D MERICAN 161–64 (1995). R A UTTON ET AL GENDA Although not all campaign leaders leaders not all campaign Although UGAN A 16 TATES Roe v. Wade Roe v. INCINNATI S In general, the Religious Right is far far Right is In general, the Religious W. B C B. D IGHTS IN OADS TO ISTORY OF ISTORY note 10, at 68. 17 R H NTIGAY , R A ONSERVATIVE AY AY FF IN NITED It was not until 1977 that a conservative a conservative 1977 that until It was not . 531 (1997) (analyzing the routine opposition against these these opposition against (1997) (analyzing the routine . 531 supra G O AMES U 12 :C J (1999). note 4, at 13. at note 4, ., HE OC IMBERLY RIEF VER K Rethinking the Tyranny of the Majority the of Tyranny the Rethinking , T IAMOND O ACING D , 410 U.S. (1973)., 410 113 .J.S supra supra AB EEPERS , M : F In 1974, Boulder, Colorado community members members community Colorado In 1974, Boulder, K I. ERMAN 11 ARA ESENTMENT ATTLES H UTTON ET AL TONE S R OWER IN THE The anti-gay Religious Right emerged within the New the New within The anti-gay Religious Right emerged IGHTS 103 A B at 69 (detailing the history of the ordinances). the of history the (detailing 69 at P S : B R 14 IDI ROMISE See See v. Wade Roe See generally P See D See See generally Id. 9 (1997). The Religious Right is a “broad coalition of profamily [sic] [sic] profamily of a is “broad coalition Right The Religious Ballot measures on LGBT rights emerged at the municipal rightsmunicipal LGBT on emerged at the Ballot measures 12 13 14 15 16 17 10 11 OBILIZING M K IGHT ISEXUAL ONFLICTS OLITICAL organizations and who organizations have come individuals and to together in the political vision a conservative Christian for struggle realm.” level as part of a reaction to the advances of the emerging gay gay the emerging of to the advances a reaction part of level as and lesbian gay the the 1970s, In movement. and lesbian that ordinances nondiscrimination municipal passed movement public and/or employment, housing, in protections provided on sexual orientation. based accommodations collected petitions to put their ordinance up for referendum, but but referendum, up for put their ordinance to petitions collected little received and unorganized relatively was the opposition national attention. Right from the rising involvement of evangelical Christians in in Christians of evangelical involvement rising the Right from of the pro-life the beginning specifically the 1970s, in politics to in response movement anti-gay countermovement organized to oppose the growing the growing oppose to organized countermovement anti-gay movement. lesbian and gay the of successes movement had successfully passed fourteen of these ordinances these ordinances of fourteen passed successfully had movement routine only with country the across in municipalities opposition. TO THE R P B C 2016] 2016] Do Not DeleteDo movements). or actors involved in municipal or state ballot measures may may measures ballot state or municipal in involved or actors consistently scholars Right, the Religious of as members identify agenda; movement a broader of part as campaigns these analyze national Religious with well-networked are most campaigns about LGBT rights frames master share Right organizations and opinion. public to sway M antifeminist movement to defeat the Equal Rights Amendment Amendment the Equal Rights to defeat movement antifeminist the the growth of to to respond mobilization (ERA), the and movement. lesbian and gay Celebration and Suppression: The Strategic Use of Identity by the Lesbian and Gay Gay and the Lesbian by of Identity Use The Strategic Suppression: and Celebration Movement, C Y 37526 chp_19-1 Sheet No. 117 Side A 03/15/2016 15:53:04 A 03/15/2016 117 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 117 Side B 03/15/2016 15:53:04 , . M K S ’ OL C Y ULL EGAL B Regina Regina :L .L.P MERICA A HRIS TUD The form The form 2/21/2016 PM2:31 OURTS OLITICS OF THE 22 C &C see also see also P 66 S Rather than a Many scholars scholars Many RIGINS OF 25 21 O 23 AND THE , ALLAGHER HE G 19 :T 143–45 (2005); note 14. 14. note [Vol. 19:1 [Vol. OHN ANIC note 21, at 181–212. 21, note at OVEMENT P . 386, 400–02 (2001).. 386, 400–02 M LOSETS AND INTO THE supra supra C AY , supra supra The movement also deploys deploys also The movement G ORAL ROBS ITIGATION , 18 L (2008); J M .P EJES THE OC ERMAN , note 17. IGHTS UT OF THE CTIVISM R Popularly called the Briggs Initiative, Initiative, Briggs the Popularly called IGHT , 48 S A R note 4. note 24 ,O AY supra supra IGHTS AND note 10, at 68. , AY G R G note 16; H note 16; Chapman Law Review Law Chapman supra supra 96 (2008). AY , supra Who’s “In” and Who’s “Out”: State Fragmentation and the the and Fragmentation State “Out”: Who’s and “In” Who’s Rights Discoursethe and Mobilizationof Bias: Exploring the ETNER NDERSEN ELIGIOUS ., note 21, at 181–212. 181–212. note 21, at supra note 16, at 100. note 16, at 100; F 27 ,G A R ;F , TONE note 4, at 14. 4,note at S HE NN EJES A supra supra supra supra supra F :T ESBIAN AND , , , Bryant and the group Save Our Children, Children, Our Save the group and Bryant L TRUCTURE AND ARDISTY supra supra S 20 , RED OMOSEXUALITY LLEN UTTON ET AL EJES The Briggs Initiative was “[o]verwhelmingly opposed opposed was “[o]verwhelmingly Initiative The Briggs F Joseph Mello, Mello, Joseph E H B NEMIES 26 ; F E ARDISTY ARDISTY TONE HAPED 1, 2–3, 22 (2015). 1, 22 2–3, See See Id. S S Y See See See id. generally generally See H H See ’ In 1977, celebrity Anita Bryant, a former Miss America Bryant,formerMiss In 1977, America Anita a celebrity Shortly after Dade County’s ballot measure, California State State California measure, County’s ballot Dade Shortly after (1996); H S 19 20 21 22 23 24 25 26 27 18 OC EBATE ON PPORTUNITY IGHT ERFECT point to the Dade County conflict and the national attention to to attention the national and conflict County Dade the to point in lesbian an upsurge motivating for in 1977 issues rights gay time. this the country during activism across and gay contestant and spokesperson for Florida Orange Juice, led a a led Juice, Orange Florida for spokesperson and contestant nondiscrimination Florida Dade County, the against campaign ordinance. this new law would have required the firing of teachers who were were who teachers of firing the required have would law this new advocated homosexuality. or who lesbian or gay, Senator John Briggs, who worked with Bryant on her campaign, campaign, on her Bryant with worked who John Briggs, Senator a Initiative, Children Our Defend the California sponsored and lesbian gay protected that law to a 1975 California response fired. being from teachers Institutional Dynamicsthe ofSame-Sex Marriage Debates in America, more radical claims about gay rights for a public audience than than audience public for a rights gay about claims radical more audience. legislative or judicial a for they do & S D R 1990 O 222 Do Not DeleteDo more successful in the arena of ballot measures than they are on on are than they measures arena in the ballot of successful more level. or judicial the legislative referendum to overturn an existing law, this initiative was an an was initiative this law, an existing overturn to referendum measure ballot the through anti-gay law a new, write to attempt process. by teachers’ unions and then-Governor Ronald Reagan” and lost lost and Ronald Reagan” then-Governor teachers’ unions and by votes. a million by P Incorporated gained national attention with their rhetoric about about rhetoric with their attention national gained Incorporated about arguments their specifically rights, gay of the dangers that gay implying influence on children, rightsthe and religious children. to recruit looking pedophiles men were of the Dade County ballot measure—reactive opposition to the to of opposition the the Dade ballot County measure—reactive type of common most the legislation—was of pro-gay passage period. time this during measure ballot anti-gay Werum & Bill Winders, Winders, & Bill Werum Rights, 1974-1999 Struggle over Gay 37526 chp_19-1 Sheet No. 117 Side B 03/15/2016 15:53:04 B 03/15/2016 117 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 118 Side A 03/15/2016 15:53:04 , , , ]. see OLICY The P HANGE 34 C 2/21/2016 PM2:31 UBLIC ,P REATING 477, 490 (1986); , Dec. 1986, at 10, 9, 223 223 EXUALITY HANGE :S .C DVOCATE A OC Q.488 (1997). 477, ” , HANGE In the late 1980s, the In the late 1980s, the C 31 .L.&S EV R REATING NTHROPOLOGY C .A and Colorado Amendment 2. in , ED 33 note 17,note at 25–30. , 15 N.Y.U. Family Values: From the White House Conference on on Conference House White the From Values: Family Conjuring Medical Science: The 1986 Referendum on on Referendum 1986 The Science: Medical Conjuring Although unsuccessful, the LaRouche the LaRouche unsuccessful, Although , 11 M Petition for Extraordinary Relief: LaRouche If the AIDS 29 Californianson Say “No 64 Women’s Rights and the Proposed Family Protection Act Protection Family Proposed the and Rights Women’s supra supra , note 4, at 20. note 4, ULL Rethinking the Tyranny of the Majority the of Tyranny the Rethinking note 4, at 21. 4,note at &B supra . 141 (1981). . 141 (1981). , 336 (John D’Emilio et al. eds., 336 (John al. 2000) D’Emilio et [hereinafter C EV In 1986, Lyndon LaRouche sponsored a statewide a statewide sponsored Lyndon LaRouche 1986, In Few of these ballot measures made it on the ballot, it on the ballot, made ballot measures Few of these supra supra Karen Flax, Flax, Karen 30 28 , 32 , http://ballotpedia.org/Oregon_Government_Must_Discourage_Homosexuality,_ TONE L. R IGHTS Jay M. Kohorn, S Thomas J. Burrows, J. Thomas R ALLAGHER TONE IAMI Oregon Government Must Discourage Homosexuality, Measure 9 (1992) 9 Measure Homosexuality, Discourage Must Government Oregon Colorado No ProtectedStatus Sexual for Orientation Amendment, Initiative 2 (1992), Mark Vandervelden, Vandervelden, Mark See S G See IVIL The two most infamous legal-restrictive initiatives are are initiatives legal-restrictive infamous The two most In the late 1980s, the Religious Right also innovated with a a with innovated Religious Right also the In the late 1980s, In the mid-1980s the Religious Right harnessed panic and and panic harnessed Right Religious the mid-1980s In the Christopher P. Toumey, P. Toumey, Christopher C 30 31 32 33 34 28 29 see also also see M K ALLOTPEDIA 36 U. M Measure_9_(1992) [http://perma.cc/2SBJ-8S2R]. Measure_9_(1992) [http://perma.cc/2SBJ-8S2R]. movement spearheaded campaigns to eliminate “special rights” rights” “special eliminate to campaigns spearheaded movement Washington, to of in the State based on sexual orientation of cities California in of the homosexuality prohibit the promotion for voter approval require to and Riverside, and Irvine, Concord, and Minnesota Maine, California, in rightsLGBT laws Paul). (St. HIV/AIDS initiative which required mandated state reporting of of state reporting mandated required which initiative HIV/AIDS and in quarantine AIDS of the inclusion with AIDS, individuals to open occupations the on limitation a and statutes, isolation individuals. afflicted new form of anti-gay ballot measure, the legal-restrictive legal-restrictive the ballot measure, of anti-gay new form to constrain attempted initiatives Legal-restrictive initiative. for support government limiting by future legislation LGBT rights passing of possibility or the homosexuality eliminating any typically along with in the future, legislation these developed Right The Religious existing protections. Act of 1981, Protection failed Family the out of initiatives for school provisions that included legislation federal attempted roles for traditional over parental control textbooks, prayer, of or support promotion the and prohibited women, the government. by homosexuality AND See generally See generally fear about AIDS to increase fundraising and anti-gay and fundraising increase to AIDS fear about animosity. Initiative Passed had California in 2016] 2016] Do Not DeleteDo Families to the Family Protection Act Protection Family the to Families but their attempt demonstrates an increasing emphasis within within emphasis an increasing demonstrates but their attempt rights. LGBT to opposition proactive on Right the Religious 9 Measure Oregon Ballot also initiative led to a series of similar initiatives addressing AIDS in in AIDS addressing initiatives of similar series a to initiative led California. 11; B AIDS/HIV Policy CaliforniaAIDS/HIV in C Y 37526 chp_19-1 Sheet No. 118 Side A 03/15/2016 15:53:04 A 03/15/2016 118 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 118 Side B 03/15/2016 15:53:04 , M K _ B. C Y 346 346 Y ’ note 38. note note 33. OC Ballot Ballot OMMUNITY UZANNE 35 Orientation (Il)legitimate _ Colorado ,C 2/21/2016 PM2:31 supra supra supra , , &S 41 L.J. (2002). 163 Sexual _ EEN ORLD K for , 23 J.L. & S APITALISM OLDBERG _ W :C ISA &G L HIRD CFV had originally had originally CFV (1998). T EEN 38 [Vol. 19:1 [Vol. K RIAL CONOMICS T E Ultimately, Oregon voters Oregon voters Ultimately, , 22 B.C. note 38, at 3. note 38, at 36 although it was quickly quickly it was although see also The Hoax of “Special Rights”: The Right Right The Rights”: “Special of Hoax The “Humanity on the Ballot”: The Citizen Citizen The Ballot”: the on “Humanity OMO 42 See generally See generally CFV innovated with a secular, CFV innovated with a secular, H 39 supra supra EOPLE ON , In the same election year, the the year, election same In the P in in , 37 AY note 38, at 133–58; Didi Herman,note 38, at 133–58; Didi :G Through this argument, the Religious this argument, the Religious Through note 17, at 48–51. note 43 40 OLDBERG AW L supra supra Chapman Law Review Law Chapman &G supra , 209, 218eds., Reed& Betsy (Amy 1997). Gluckman , note 16, at 105. 16, note at EEN IFE ULL Elizabeth A. Tedesco, Tedesco, A. Elizabeth K L &B AY supra OLDBERG G , see also &G TRANGERS TO THE THE TRANGERS TO , http://ballotpedia.org/Colorado_No_Protected_Status Jean Hardisty & Amy Gluckman, Hardisty Jean Romer v. Evans, 517 U.S. 620 (1996); ,S ARDISTY EEN ALLAGHER Colorado No Protected Status for Sexual Orientation Amendment, Initiative 2 2 (1992), Initiative Amendment, Orientation Sexual for No Protected Status Colorado See See generally (1992) 9 Measure Homosexuality, Discourage Must Government Oregon (1996). H 2 (1992), Initiative Amendment, Orientation Sexual for No Protected Status Colorado K See G ESBIAN AND In the next few years, the Religious Right disseminated the the disseminated Right the Religious years, few the next In note 34; 34; note note 34. 34. note 38 39 40 41 42 43 35 36 37 L OLDBERG ALLOTPEDIA rejected Ballot Measure 9. Measure Ballot rejected mobilized to defeat an ordinance in conservative Colorado Colorado conservative in ordinance an defeat to mobilized “true” between 2 distinguished Amendment Colorado Springs. using legal language about by and gays “protected minorities status.” and “minority classes” challenged in the courts. the in challenged Right appealed to both voters who were ambivalent about civil civil about ambivalent were who voters to both Right appealed members. American community rights and African Wing’s Attack on Gay Men and Lesbians and Men Gay on Attack Wing’s AND Amendment,_Initiative_2_(1992) [http://perma.cc/HW5G-Z5MF]. supra organization Colorado for Family Values (CFV) sponsored sponsored (CFV) for Family Values organization Colorado and future that eliminated legalistic initiative 2, a Amendment state. the in rightsexisting gay laws Minorities: The American Christian Right’s Anti-gay Discourse Anti-gay Right’s Christian American The Minorities: Measure 9 was one of the most extreme anti-gay initiatives in initiatives in anti-gay extreme the most one of 9 was Measure future and all existing eliminated have would that it of lesbian firing the with requiring along laws, nondiscrimination anyone openly (along with schools in public teachers and gay or queer transgender, bisexual, gay, of lesbian, supportive of homosexuality approving of all books removal rights), and the libraries. and schools public from supra Initiative and Oregon’s War over Gay Civil Rights Civil Gay over War Oregon’s and Initiative B 224 Do Not DeleteDo G Oregon Citizen’s Alliance (OCA), led by vocal anti-gay activist activist anti-gay vocal by led (OCA), Alliance Citizen’s Oregon Oregon the in initiatives legal-restrictive sponsored Lon Mabon, test were which 1992, in early Springfield and Corvallis of cities 1992. in November initiative statewide the for cases passim legal-restrictive initiative across the United States. Mabon and Mabon and States. across the United initiative legal-restrictive voters passed Amendment 2, voters passed Amendment legalistic argument about LGBT rights that became widely used used widely LGBT rights that became argument about legalistic language This country. the across Right campaigns Religious by rights gay and lesbian about how argument a legalistic included minorities” “true of the rights usurped rights” that were “special Americans. like African 37526 chp_19-1 Sheet No. 118 Side B 03/15/2016 15:53:04 B 03/15/2016 118 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 119 Side A 03/15/2016 15:53:04 . OC MALL and S &S 50 declared declared IMITS TO IMITS TO L NITIATIVES I After the After the 2/21/2016 PM2:31 HE The most 53 , 39 L. 46 OTER ,T the Religious the Religious V United States United States This case set This case set TORY OF A TORY 54 S 225 225 , 49 ILLER HE -H 22 (2002). in 1996 and fifteen in 1996 and fifteen SSESSING :T 55 :A 27 (2001). IGHTS Lawrence v. Texas v. Lawrence at the state and town town and state at the OOR R OLDBERG D 44 note 4. G IGHTS IVIL 52 IGHTS . R C R EXT supra Strange Bedfellows: How an Anticipatory Anticipatory an How Bedfellows: Strange N Baehr v. Lewin Baehr , GAY IVIL - C Religious Right affiliates across across affiliates Right Religious ONATHAN NTI 45 J TONE 47 A S OLITICS OF AND , in P TRANGER TRANGER This ruling invalidated state state invalidated This ruling , S 48 . AITH see also also see ,F HE foreclosed the use of state legal-restrictive legal-restrictive state of the use foreclosed EX ,T S The Constitution as Historical Symbol in Western Anti-gay Anti-gay Western in Symbol Historical as Constitution The note 17, at 9–10. at note 17, note 4, at 87. at note 4, . See generally TEIN Obergefell v. Hodges S Rethinking the Tyranny of the Majority the of Tyranny the Rethinking ARRIAGE AND THE Romer Romer supra supra United States v. Windsor, 133 S. Ct. 2675 (2013). 133 S. Ct. States v. Windsor, United supra supra , M , and ATTLE OVER EX 51 B RLENE , 517 U.S. 620; , 517 U.S. at 632–36. ordinances legal-restrictive municipal However, -S UGAN TONE A S ’ Daniel Levin, Levin, Daniel Michael C. Dorf & Sidney Tarrow, Tarrow, & Sidney Dorf C. Michael D S AME 449, 463 (2014). See See Romer v. Evans Romer v. :S Romer Romer Lawrence v. Texas, 539 U.S. (2003). 558 Windsor, United v. States Ct. 2675 (2013). 133 S. ObergefellHodges,2584 (2015). v. Ct. 135 S. See 1993). P.2d 44 (Haw. Baehr v. Lewin, 852 Defenseof Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), See See See In 1996, the Supreme Court repealed Colorado Amendment 2 2 Amendment Colorado repealed Court the Supreme In 1996, Although Although 48 49 50 51 52 53 54 55 44 45 46 47 M K NION OMMUNITY NQUIRY in Right mobilized in anticipatory counter mobilization to pass the the pass to mobilization counter in anticipatory Right mobilized (DOMA) Act of Marriage Federal Defense an important precedent for future Supreme Court rulings, Court rulings, Supreme for future precedent an important in laws of sodomy the abolition including legal-restrictive initiatives but also affirmed the legitimacy of of the legitimacy affirmed but also initiatives legal-restrictive category. minority-group a as sexual orientation Countermovement Brought Same-Sex Marriage into the Public Arena Public the into Marriage Same-Sex Brought Countermovement unconstitutional by the OCA persisted in sponsoring additional legal-restrictive legal-restrictive additional sponsoring in OCA persisted the of 9”) son “the called (often initiatives continued in the Midwest the in continued Rights Initiatives: The Case of Idaho of Case The Initiatives: Rights notable successful legal-restrictive initiative was the passage of of passage the was initiative legal-restrictive notable successful 1993. in Cincinnati 3 in Issue 1993 Hawaii Supreme Court case, case, Court Supreme 1993 Hawaii I U C McCorkle eds., 1997). & Suzanne Witt 33, L. 36 (Stephanie 2016] 2016] Do Not DeleteDo initiatives, the success of these initiatives created tactical created tactical initiatives of these success the initiatives, were rights that to LGBT opposition proactive of repertoires many mid-1990s, In the marriage. same-sex to oppose mobilized about prohibiting clause a included initiatives legal-restrictive and Sidney Tarrow Dorf Michael Scholars marriage. same-sex counter in anticipatory engaged activists argue that anti-gay be would it before marriage same-sex opposing mobilization, or legislatures. the courts by recognized realistically levels for the next two years, passing these initiatives in over in over initiatives these passing years, two next the for levels state. the across thirty towns the establishment of same-sex marriage rights in rights marriage same-sex of the establishment v. Windsor the country collected petitions for imitation Amendment 2 2 Amendment for imitation petitions collected the country a similar sponsored OCA the of and an affiliate initiatives, pass. did not voters the which in Idaho, initiative C Y 37526 chp_19-1 Sheet No. 119 Side A 03/15/2016 15:53:04 A 03/15/2016 119 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 119 Side B 03/15/2016 15:53:04 M K AY AY HE C Y G IMES T in , N.Y. T 3/5/2016 12:033/5/2016 PM Goldberg-Hiller, Goldberg-Hiller, ESBIAN AND For over a over a For L Long before before Long 58 57 see also see also ITHIN THE Similarly, after the after Similarly, [Vol. 19:1 [Vol. W 56 Until 2012, voters passed passed Until 2012, voters 59 . 213, 215 (1999); ARRIAGE EV M L. R The Alaska Marriage Amendment: The People’s People’s The Amendment: Marriage The Alaska EX -S Mobilizing the Base and Embarrassing the the the BaseEmbarrassing Mobilizing and note 53, at 450. at 450. 53, note LASKA AME 60 S Chapman Law Review Law Chapman , 16 A supra supra note 4, at 129–54. at note 4, California Court High Upholds Gay MarriageBan, Winning for LGBT Rights, Losing for Same-Sex Marriage Same-Sex for Losing Rights, LGBT for Winning EBATING supra supra , ?D There were two things that were historical about about historical were that two things There were 61 . 717 (2008). 713, IND Bayliss J. Camp, Camp, J. Bayliss TONE K Kevin G. Clarksonet al., 135, 161–62 (Mary Bernstein eds.,Taylor & 2013). Verta S Dorf & Tarrow, & Tarrow, Dorf ERSP See See See See .P See See Amy L. Stone, Schwartz, John note 48, at 1. 48, at 1. note In early 2008, the California Supreme Court legalized legalized Court California Supreme In early 2008, the 57 58 59 60 61 56 OC ARRYING OVEMENT supra supra decade, the same-sex marriage ban was the Religious Right’s Right’s Religious the was ban marriage same-sex the decade, tactic. measure ballot most successful legalization of civil unions in Vermont in 1999 and same-sex same-sex and in 1999 in Vermont civil unions of legalization Right Religious the 2004, in Massachusetts in marriage initiatives amendment constitutional state of series a sponsored first The marriages. same-sex forbid to the country across in 1998 in were marriage same-sex on measures ballot statewide authorized had court cases where states two Alaska and Hawaii, of legal same-sex marriage. the possibility same-sex marriage, and Religious Right organizations quickly organizations quickly and Religious Right marriage, same-sex on the put amendment to a constitutional petitions collected 8 When Proposition in the state. marriage ballot to ban same-sex 18,000 same-sex than 2008, more of on in November was voted in the conducted been State of already had marriages California. California Proposition 8. First, the initiative was the first time time first the was the initiative 8. First, Proposition California in a state that conducted marriages legal same-sex there were size and the Second, a ballot measure. by would be rescinded (May 26, 2009), http://www.nytimes.com/2009/05/27/us/27marriage.html?_r=0 [http://per 45TU-5JVF]. ma.cc/ Choice on the Last Frontier on the Last Choice Opposition: Defense of Marriage Referenda and Cross-Cutting Electoral Cleavages, Cleavages, Electoral Cross-Cutting and Referenda Marriage of Defense Opposition: 51 S same-sex marriage was legal in Massachusetts, the Religious Religious the Massachusetts, legal in was marriage same-sex to support campaigned initiatives or citizen Right sponsored ballot. on the amendments constitutional legislatively-referred forbade that were “super-DOMAs” measures ballot Some of these as such relationships, broader and marriage both same-sex rights. and recognition partnerships domestic M M 226 Do Not DeleteDo statutory DOMAs in states like Arizona, Georgia, Utah, Idaho, Idaho, Utah, Georgia, Arizona, in states like DOMAs statutory and 1996. in 1995 and Michigan all bans except one, most by a large margin of support. The The of support. a large margin most by one, all bans except due marriage bans same-sex to defeat struggled LGBT movement limited marriage, same-sex for support of voter to the lack states run in campaigns inexperienced and resources, movement such as rights, LGBT on measures that rarely had ballot Missouri. and Montana 37526 chp_19-1 Sheet No. 119 Side B 03/15/2016 15:53:04 B 03/15/2016 119 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 120 Side A 03/15/2016 15:53:04 , , , 67 (Nov. 63 64 IMES ALLOTPEDIA ALLOTPEDIA ALLOTPEDIA , http://ballot , http://ballot 3/5/2016 12:033/5/2016 PM Hollingsworth Hollingsworth , B , B , B , N.Y. T 227 227 , http://ballotpedia.org/ ALLOTPEDIA , B (2012) [http://perma.cc/9HJZ- _ 1 vacated sub nom sub nom vacated _ ALLOTPEDIA B 8, http://www.8theplay.com/about-8/ (last (last http://www.8theplay.com/about-8/ 8, Question ” _ , In Maryland and Washington, and Washington, In Maryland %282012%29 [http://perma.cc/Z3MG-LM75]. %282012%29 [http://perma.cc/Z3MG-LM75]. _ 66 74 _ , http://ballotpedia.org/Washington_Same-Sex_ , http://ballotpedia.org/Washington_Same-Sex_ Why “8 Why Washington Same-Sex Marriage Veto Referendum, Referendum, Veto Marriage Same-Sex Washington Like Colorado Amendment 2, this this 2, Amendment Like Colorado , Question, 62 _ IGHTS R ALLOTPEDIA Referendum _ Marriage _ QUAL , B Across U.S., Big Rallies for Same-Sex Marriage Same-Sex for Rallies Big U.S., Across E After over a decade of successful same-sex same-sex successful a decade of After over Rethinking the Tyranny of the Majority the of Tyranny the Rethinking 65 FOR . Same-Sex _ Referendum, However, only the referendum in Royal Oak resulted resulted Oak in Royal the referendum only However, _ 68 OUND .F Veto _ M Minnesota Same-Sex Marriage Amendment, Amendment 1 (2012) Maryland Same-Sex Civil Marriage Referendum, Question 6 (2012) (2012) 1 Question Question, Marriage Same-Sex Maine North CarolinaSame-Sex 2012) Marriage, Amendment (May 1 Jesse McKinley, McKinley, Jesse PerryF.3d (9th Cir. 2012), v. Brown, 671 1052 See Chart 2012 Ballotof Issues, Measure North Carolina voters passed a same-sex marriage ban in ban in marriage a same-sex passed voters North Carolina The success of the Religious Right in passing same-sex same-sex in passing Right Religious of the The success 66 67 68 62 63 64 65 M K by Dustin Lance Black. Lance Dustin by May of 2012. visited Dec. 19, 2015). visited 19, Dec. Chart_of_2012_ballot_measure_issues [http://perma.cc/Y9NF-JNGH]. And Maine voters legalized same-sex marriage through an an through marriage same-sex legalized And Maine voters initiative. marriage bans was challenged in the 2012 elections. In 2012, In 2012, the 2012 elections. in challenged was bans marriage on referendums municipal four measures: ballot nine there were Oak Royal (Alaska), in Anchorage ordinances nondiscrimination and Hutchinson; Salina of towns Kansas the and (Michigan), Carolina; North and Minnesota in bans marriage same-sex and Maryland in laws marriage same-sex on referendums the by sponsored an initiative first, and, a historical Washington; marriage. same-sex legalize to Maine in community LGBT scale of the campaigns were remarkable. The Religious Right Right Religious The remarkable. were campaigns the of scale the defeated largest successfully 8 Proposition pass to campaign any dwarfed that a campaign history, in U.S. campaign LGBT it.The passage before that came campaign measure other ballot play the and country the across protests spurred 8 of Proposition 8 15, 2008), http://www.nytimes.com/2008/11/16/us/16protest.html [http://perma.cc/2BT2- 15, 2008), http://www.nytimes.com/2008/11/16/us/16protest.html 3CT7]; A v. Perry, 133 S. Ct. 2652 (2013).Perry,v. S. 2652 Ct. 133 where the state legislatures had legalized same-sex marriage, marriage, same-sex had legalized legislatures state the where a referendum. through the legislation retain to elected voters 39Q4]. 2016] 2016] Do Not DeleteDo initiative was overruled as unconstitutional in the federal courts, courts, the federal in as unconstitutional overruled was initiative 2013. of June in resumed marriages same-sex and California Marriage marriage bans, the LGBT movement won all four states in the in the states won four movement all the LGBT bans, marriage a overturned voters In Minnesota, 2012 election. November of legalization the later allowed which ban, marriage same-sex state. the in marriage same-sex http://ballotpedia.org/North_Carolina_Same-Sex_Marriage,_Amendment_1_(May_2012) http://ballotpedia.org/North_Carolina_Same-Sex_Marriage,_Amendment_1_(May_2012) [http://perma.cc/KQ9Y-BP9C]. http://ballotpedia.org/Maryland_Same-Sex_Civil_Marriage_Referendum,_Question_6_%28 [http://perma.cc/D669-GTPR]; 2012%29 Referendum 74 (2012) http://ballotpedia.org/Minnesota_Same-Sex_Marriage_Amendment,_Amendment_1_%282 http://ballotpedia.org/Minnesota_Same-Sex_Marriage_Amendment,_Amendment_1_%282 012%29 [http://perma.cc/Y43R-89YC]. pedia.org/Maine C Y 37526 chp_19-1 Sheet No. 120 Side A 03/15/2016 15:53:04 A 03/15/2016 120 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 120 Side B 03/15/2016 15:53:04 . , M K 70 EV C Y . 289 , 4 J.L. EV ULTURE .L.R .R LB 2/21/2016 PM2:31 DUC Activists (Nov. 2013, 5, .&C 72 and voter .E , 70 A IVE (Nov.4, 2015), 76 IST (Apr. 4, 2012), ARV ML IMES .H IMES AnchorageVoters Reject RK ,78 H ,78 A 69 Hijacking Education Policy N.Y. T AJORITY , N.Y. T , [Vol. 19:1 [Vol. M NCYCLOPEDIA voter education, . (1992). 559 Q. 75 , E OL W. P The Effects of Ballot Initiatives on Voter Turnout in in Turnout Voter on Initiatives Ballot of Effects The . 625 (2001). BallotPropositions and Information Costs: Direct ES ,45 The Case for Judicial Review of Direct Democracy Direct of Review Judicial for Case The YRANNY OF THE .R T OL Chapman Law Review Law Chapman .P HE M note 4, at 170. note at 4, T Gay Rights Ordinance Passes in Royal Oak, Oak, Royal in Passes Ordinance Rights Gay Out of the Bottle: The Genie of Direct Democracy Direct of Genie The Bottle: the of Out forecloses any future marriage ban ballot ballot ban marriage future any forecloses voter turnout, II. Elise Hofer, , 42 A 74 supra In Houston, Hate Trumps Fairness ,

71 77 TONE Shaun Bowler et al., al., et Bowler Shaun Gay and Lesbian Movement Lesbian and Gay Caroline J. Tolbert el al., el al., Tolbert J. Caroline There are ongoing questions about whether ballot ballot whether questions about There are ongoing Michele S. Moses & P. Lauren Moses Saenz, S. Michele S at 1050. at 73 See DuVivier, K.K. Id. See See See generally See Khalil AlHajal, AlHajal, Khalil Editorial, There are legal, social, and political questions about the the about questions political and social, legal, There are Obergefell Obergefell 71 72 73 74 75 76 77 69 70 measures, but the Religious Right still mobilizes against state state against mobilizes still Right Religious the but measures, measures. ballot with laws nondiscrimination and municipal 9:30 PM), http://www.mlive.com/news/detroit/index.ssf/2013/11/gay_rights_ordinance_pas 9:30 PM), http://www.mlive.com/news/detroit/index.ssf/2013/11/gay_rights_ordinance_pas Yardley, William [http://perma.cc/AD9P-CTNK]; ses_in.html Residents Gay to Protections Rights of Extension http://www.nytimes.com/2015/11/05/opinion/in-houston-hate-trumped-fairness.html; Alan http://www.nytimes.com/2015/11/05/opinion/in-houston-hate-trumped-fairness.html; Alan Hickman, Increasingly, these referendums focus on protections for gender gender for protections on focus referendums these Increasingly, Right Religious to central rights transgender making identity, campaigns. the American States American the http://www.nytimes.com/2012/04/05/us/proposition-5-gay-rights-anchorage-alaska.html. http://www.nytimes.com/2012/04/05/us/proposition-5-gay-rights-anchorage-alaska.html. Decisions: Ballot InitiativesDecisions:the and of Affirmative Case Action Democracy and the Fatigued Voter Fatigued the and Democracy 49 (2014). 228 Do Not DeleteDo idealized these initiatives as a purer form of democracy that was that was democracy of form as a purer these initiatives idealized democracy. interests of representative devoid of the special the genie from arise consequences “unintended However, citizen case of than greed” in the rather ignorance master’s voters. in the retention of a nondiscrimination ordinance; in the other other in the ordinance; a nondiscrimination of retention in the transgender about tactics scare Right Religious cities, three decision. voters’ may have influenced women (2008). consequences of anti-gay ballot measures. Scholars have long have long Scholars ballot measures. anti-gay of consequences a it is whether itself, democracy direct of the merits debated governance. citizen of form or an ideal majority of the tyranny a to measure ballot citizen-initiated the likens DuVivier K.K. Populist and the Progressive by bottle out of let “genie” being democracy. direct for advocated that movements 1045 (2007). http://www.encyclopediaofarkansas.net/encyclopedia/entry-detail.aspx?entryID=1177 http://www.encyclopediaofarkansas.net/encyclopedia/entry-detail.aspx?entryID=1177 [http://perma.cc/H9XE-NLXK]. confusion. measures reflect the will of the majority due to problems with with to problems due of the majority the will reflect measures voter fatigue, 37526 chp_19-1 Sheet No. 120 Side B 03/15/2016 15:53:04 B 03/15/2016 120 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 121 Side A 03/15/2016 15:53:04 , 84 Direct Direct . L. 1. M OLITICAL P NITIATIVE .A I FFIRMATIVE A DUCATED BY 2/21/2016 PM2:31 URV ND .S . Q. 364 (2011). ,E E CI NN . 245 (1997); Donald . 245 (1997); Donald 229 229 .S CI . 1020 (1998); Barbara Direct Democracy and and Democracy Direct OC OLBERT .S CI Three-quarters of Three-quarters OLITICS OF ITIZENS AND P C OL .S 81 ATTLE TO J. T ,92 S ,92 OL B HE .J.P S ’ M , 1999 N.Y.U. A .J.P :T M , 41 A AROLINE (July 15, 2014), http://www.washington , 42 A The main evidence for the the for The main evidence dment (ERA), dment and reproductive ALIFORNIA EMOCRACY ON OST &C 80 D EMOCRACY :C .P (2004); Todd Donovan & Shaun Bowler, & Shaun Bowler, Donovan Todd (2004); The exceptions to this pattern are are pattern this to The exceptions D 82 IND ASH MITH B TATES IRECT ,W S D IRECT A. S Health Survey Gives Government Its First Large-Scale Large-Scale First Its Government Gives Survey Health Other scholars have argued that direct that direct have argued scholars Other OLOR OLOR . Q. 304 (2007); Daniel Lewis, C. The greater success of ballot measures on on measures of ballot success The greater 79 ,D C “Democracy in FreeFall:”Use The of Ballot Initiatives to ES ffirmative Action Programs 83 97–98 (1989). HE .R ANIEL MERICAN Lose, Win, or Draw? A Reexamination of Direct Democracy and and Democracy Direct of Reexamination A Draw? or Win, Lose, A D RONIN OL note 78, atnote 78, 248. note 78, at 245. ,T Rethinking the Tyranny of the Majority the of Tyranny the Rethinking ECALL FFECTS OF note 77, note at 57. R E E. C In her early work, Barbara Gamble argues, Gamble In work, her early Barbara supra supra supra , 60 P HAVEZ 78 C HE HE supra AND , Putting Civil Rights to a Popular Vote Popular a to Rights Civil Putting : T YDIA HOMAS (1998); Jodi Miller, Gamble, Gamble, Hofer, L Gamble, T Sandhya Somashekhar, See generally Many scholars contend that the referendum and initiative initiative and referendum the that contend scholars Many 79 80 81 82 83 84 78 M K RGANIZATIONS IN THE CTION EFERENDUM NITIATIVE Minority Rights: Same-Sex Marriage Bans in the U.S. States U.S. the in Bans Marriage Same-Sex Rights: Minority “Typically, civil rights laws seek to shift political power from the the from power political to shift seek laws rights civil “Typically, in steeped conflict a creating minority, the to majority political minority a rights the civil of where Thus, self-interest. the opens filter of the representative absence the are at stake, tyranny.” door to the Democracy and Minority Rights: An Extension Rights: Minority and Democracy democracy “uniquely facilitate[s] majoritarian oppression of of oppression majoritarian facilitate[s] “uniquely democracy minority interests.” disfavored S. Gamble, S. Gamble, P. Haider-Markel et al., P. Haider-Markel Minority Rights initiatives that focus on women’s issues such as women’s women’s such as on women’s issues that focus initiatives Amen suffrage, Equal Rights the forms to other similar rate is the passage which in rights issues, initiatives. of citizen processes can be tyrannical assertions of majority power over over power majority of assertions tyrannical can be processes minorities. Data on Gay, Bisexual Population Bisexual Gay, on Data A I O 2016] 2016] Do Not DeleteDo R initiatives on these topics are enacted to restrict or eliminate eliminate or restrict to enacted are topics on these initiatives way. some in rights minority Dismantle State-Sponsored A State-Sponsored Dismantle post.com/national/health-science/health-survey-gives-government-its-first-large-scale-data post.com/national/health-science/health-survey-gives-government-its-first-large-scale-data -on-gay-bisexual-population/2014/07/14/2db9f4b0-092f-11e4-bbf1-cc51275e7f8f_story.html women’s issues is partly a consequence of the demographic the demographic a consequence of is partly issues women’s large-scale first the comparatively, of women; prominence the National Health orientation, of sexual government survey than three less that in July 2014, reported Survey, Interview or bisexual. lesbian, gay, identify as Americans of percent tyrannical nature of these measures is the frequency with which is the frequency with which these measures of tyrannical nature rate of passage The low box. at the ballot civil rights voters reject that civil rights suggests measures rights on civil referendums The approval. majority to when subject fare poorly measures anti-civil for rights are even more dramatic rates passage policies, AIDS bans, action affirmative as such initiatives, English minorities, racial for accommodations public and housing bans. marriage same-sex and language laws, C Y 37526 chp_19-1 Sheet No. 121 Side A 03/15/2016 15:53:04 A 03/15/2016 121 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 121 Side B 03/15/2016 15:53:04 M K 86 C Y 2/21/2016 PM2:31 The Guarantee A Handicapped, Not Not A Handicapped, [Vol. 19:1 [Vol. Out of the Closets and into into and the Closets of Out Kevin R. Johnson, Johnson, R. Kevin . 1259 (2008); Anya J. Stein, . L.Q. 343 (2009). Other ballot measures—such as as measures—such Other ballot EV 88 See generally note 4, at 63–90. 4, at note ONST .L.R C AL note 1887. note 1887. supra Chapman Law Review Law Chapman , note 18. 18. note ASTINGS , 96 C supra supra TONE , Thus, the high passage rate of anti-gay ballot ballot of anti-gay rate passage high Thus, the note 77, at 52. 89 ,37 H ,37 supra supra , along with harsher requirements for initiative initiative for requirements harsher with along , Ellen Ann Andersen traces the history of judicial judicial of history the traces Andersen Ann Ellen , supra 85 NDERSEN A Some of the most tyrannical ballot measures have been have been measures ballot tyrannical most the of Some NDERSEN 87 See See A S 143–74; at Id. a period over referendums multiple have to city same the for common it is Indeed Hofer, Hofer, This literature on the tyrannical nature of anti-gay tyrannical nature of ballot on the This literature The tyrannical aspects of direct democracy have led to the have led to the democracy direct of aspects The tyrannical 86 87 88 89 85 measures focused disproportionately on the constitutionality of of the constitutionality on disproportionately focused measures passage the high judicial review, during pre-ballot initiatives and broader tyranny, for as evidence measures rate of ballot measures is mitigated by pre- and post-ballot legal challenges. legal challenges. pre- and post-ballot by mitigated is measures or years successful challenges may be legal post-ballot However, city that of residents leaving initiative, an anti-gay after decades meantime. the in policies and laws anti-gay with state or petition collecting. Historically, the LGBT movement has movement has LGBT the Historically, collecting. petition to review judicial post-ballot pre- and both used effectively her book In democracy. subvert direct the Courts 1974 to 2003. from ballot measures to anti-gay challenges National organizations, like Lambda Legal, and local campaigns campaigns local and Legal, Lambda like organizations, National which challenges, legal filed pre-ballot have systematically alike, the in initiatives legal-restrictive multiple of deterrence the led to 1990s. deflected before petition collection and voting. Additionally, two Additionally, two voting. and collection petition before deflected initiatives initiatives—legal-restrictive of anti-gay extreme forms bans—have by been overturned and same-sexmarriage review. judicial post-ballot of decades about these nondiscrimination ordinances. For example, Houston, Texas, had had Texas, Houston, example, For ordinances. nondiscrimination these about of decades domestic on a vote protections, of 1985 nondiscrimination on January referendums in two partnerships in 2001, andordinance Ferndale, a vote on a nondiscrimination in 2015. on nondiscrimination initiatives and referendums separate three had Michigan, ordinances November in 2000, February 1991, and November 2006. final the In a legal had Ohio, Cincinnati, passed. was ordinance a nondiscrimination referendum, in 2006. initiative restrictive legal 1993 and a vote the to rescind in initiative restrictive Miami-Dade,Florida, referendums on nondiscrimination had ordinances in 1977, 1978, and 2002. “Sleeping,” Giant: The Devastating Impact of the Initiative Process on Latina/o and and Latina/o on Process Initiative the of Impact Devastating The Giant: “Sleeping,” Communities Immigrant [http://perma.cc/M6U9-ECT3]. [http://perma.cc/M6U9-ECT3]. 230 Do Not DeleteDo Ballot measures on LGBT rights require the strong support of of support strong the rights on LGBT require measures Ballot pass. to order in allies heterosexual review of ballot judicial and post-ballot pre-ballot stricter call for measures, referendums on municipal nondiscrimination laws—typically do do laws—typically nondiscrimination municipal on referendums again legislation said passing from actors political not foreclose in the future. Clause in the States: Structural Protections for Minority Rights and Necessary Limits on on Limits Necessary and Rights Minority for Protections Structural States: the in Clause Power Initiative the 37526 chp_19-1 Sheet No. 121 Side B 03/15/2016 15:53:04 B 03/15/2016 121 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 122 Side A 03/15/2016 15:53:04 , . 56 OMMUNITY SYCHOL P Psychological Lesbian, Gay, Gay, Lesbian, 2/21/2016 PM2:31 .J.C M 231 231 , 31 A Ellen D.B. Riggle et al., et al., Riggle D.B. Ellen OUNSELING C Ballot measure Ballot measure 91 See See , 56 J. Stressor and ResilienceFactors for ONSEQUENCES Marriage Amendments and Psychological and Psychological Amendments Marriage C 302 (2010) [hereinafter Rostosky, EGAL EGAL Some of these community, movement, movement, community, these Some of -L 90 80 (2009); Sharon Scales Rostosky et al., 80 (2009); Sharon Rostosky Scales Y ’ XTRA OL E .P note 4, at 133–35. 133–35.note at 4, RTHOPSYCHIATRY OC Rethinking the Tyranny of the Majority the of Tyranny the Rethinking III. supra , .&S .J.O M ES R TONE S ]; Sharon Scales Rostosky et al., al., et Rostosky Scales Sharon ]; , 80 A . 313 (2003). See See Unfortunately, little of this work has included transgender individuals. Given the the Given individuals. transgender has included of this work little Unfortunately, Beyond sociolegal questions about the democratic nature of of nature the democratic about questions Beyond sociolegal First, I focus on how the LGBT community in a particular in a particular community the LGBT focus on how I First, 91 90 EXUALITY M K SYCHOL Distress in Lesbian, Gay, and Bisexual (LGB) Adults (LGB) Bisexual and Gay, Lesbian, in Distress 6 S Reactions Marriage Amendments and Lesbian, Gay, and Bisexual Individuals in the 2006 Election 2006 the in Individuals Bisexual and Gay, Lesbian, and Amendments Marriage increase in anti-transgender ballot measures and the increasing use of anti-transgender of anti-transgender use increasing the and measures ballot anti-transgender in increase transgender include should work future campaigns, Right framing by Religious of anti-LGBT animus. of the impact in studies individuals philosophical questions about whether or not referendums and and referendums not or whether about questions philosophical This Article majority. the of tyranny a for allow initiatives examine the to further, tyranny of question this presses if direct Even measures. ballot of said consequences extra-legal I argue legal outcome, in a negative not result does democracy the campaigning due to consequences are extra-legal that there movement. LGBT Right and the Religious by P 2016] 2016] Do Not DeleteDo anti-gay ballot measures, there are extra-legal ramifications for for ramifications are extra-legal there ballot measures, anti-gay in municipalities who live and individuals community the LGBT on the drain From a ballot measure. experiencing or states of secondary exacerbation to the resources monetary community referendums these movement, the LGBT within marginalization and state, local, the at consequences have and initiatives for toll psychological the document scholars Many national levels. local a experiencing individuals and bisexual gay, lesbian, measure. ballot anti-gay and Bisexual Individuals’ Psychological Reactions to Amendments Denying Access to Civil to Civil Access Denying to Amendments Reactions Psychological Individuals’ Bisexual and Marriage (2009); Glenda M. Russell & Jeffrey A. Richards,(2009); Glenda Russell M. Politics Antigay Confronting Bisexuals and Men, Gay Lesbians, campaigns are frequently unanticipated, have to be mobilized mobilized to be have unanticipated, frequently are campaigns fight to The campaign much funding. and require quickly, in in California initiative marriage the same-sex 8, Proposition city or state is impacted by a local ballot measure. Large-scale, Large-scale, a local ballot measure. by is impacted city or state anti-gay to fight ballot mobilized must be organized campaigns ballot measure gay lesbian and Consistently, measures. and resources enough marshalling with struggle campaigns successful campaigns. funding to run and individual consequences can be productive; anti-gay anti-gay productive; can be and individual consequences organizations, escalated community in new result campaigns voting habits. stronger and movement, the within mobilization negative produce measures ballot anti-gay most However, and individuals. movement, community, LGBT the for outcomes C Y 37526 chp_19-1 Sheet No. 122 Side A 03/15/2016 15:53:04 A 03/15/2016 122 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 122 Side B 03/15/2016 15:53:04 M K C Y The Even a 92 99 2/21/2016 PM2:31 One campaign One campaign 96 [Vol. 19:1 [Vol. 97 .1:06 29, 2008, (Oct. PM), http://www.us EP R ORLD The funds raised during ballot measure ballot measure during The funds raised Organizers of inexperienced campaigns campaigns inexperienced of Organizers 95 &W 98 Although some of these funds were raised were raised these funds some of Although Chapman Law Review Law Chapman 93 EWS N California Same-Sex Marriage Initiative Campaigns Shatter note 4, at xiii. xiii. 4, at note 133. 4,note at note 60. note 60. , U.S. supra supra supra supra supra , , at xxvii. xxvii. at 145. at at 71–72, 134–35. at This demand for resources in ballot measure campaigns campaigns measure ballot in resources for This demand TONE TONE 94 Id. Justin Ewers, S Id. Id. Id. Stone, S In addition to financial resources, successful campaigns have have campaigns successful resources, In addition to financial 92 93 94 95 96 97 98 99 news.com/news/national/articles/2008/10/29/california-same-sex-marriage-initiative-cam [http://perma.cc/JHB8-HU7R]. paigns-shatter-spending-records from out-of-state contributors, anti-gay ballot measures are a a are measures anti-gay ballot contributors, out-of-state from take they which in communities on the strain financial direct place. organizer remarked, “We spent a quarter of a million dollars on a a on dollars a million of spent a quarter “We remarked, organizer with lost still and thirty the constitution] ad buy [about big I really campaign the following months In the the vote. of percent the that ad, a gay-positive of benefits the about thought off.” been better have would community complained that it diverted local movement resources away from from away resources movement local diverted that it complained and laws or anti-violence anti-bullying like projects ongoing marriage. on same-sex energy activist focused instead Spending Records Spending to engage in mass mobilization of leaders and volunteers. In each and volunteers. of leaders in mass mobilization to engage Arkansas like states bans, including marriage such with state response mobilize a to had community the LGBT and Louisiana, Right. Religious to the 232 Do Not DeleteDo municipal ballot measure may require over 10,000 volunteers to to volunteers may require over 10,000 ballot measure municipal to talk to voters, canvassing door-to-door do calls, make phone 2008, spent $43.3 million, shattering campaign-spending records records campaign-spending shattering million, $43.3 spent 2008, campaigns. gubernatorial most and outspending Proposition 8 campaign spent more money than the combined the combined than money more spent campaign 8 Proposition marriage same-sex fight to campaigns other twenty-four funds of states. other bans in can draw resources away from LGBT community non-profit non-profit community LGBT from away resources can draw and centers, community organizations, health organizations, and projects activist other ongoing with along businesses, candidates. Democratic campaigns do not result in long term products for the local the local for products term in long result do not campaigns as political air into thin often disappear funds these community; community durable fueling than rather fees consulting ads or to fight crafted ads even the political Oftentimes, organizations. about LGBT change public opinion not do the ballot measure marriage many advised consultants the 2000s, polling In issues. same-sex on focus not did that ads political run to ban campaigns on the damaging ran ads focusing campaigns Instead, marriage. state the constitution. impact revising of 37526 chp_19-1 Sheet No. 122 Side B 03/15/2016 15:53:04 B 03/15/2016 122 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 123 Side A 03/15/2016 15:53:04 105 290 (Craig 290 (Craig 2/21/2016 PM2:31 IGHTS R The marriage The marriage 233 233 AY 103 G When Louisiana When Louisiana Donald P. Haider-Markel, P. Donald Haider-Markel, Progressive locals Progressive 102 101 These requirements for for These requirements OLITICS OF 104 P See generally generally See HE T in , Trauma, Recovery, and Community: Perspectives on the the on Perspectives Community: and Recovery, Trauma, Rethinking the Tyranny of the Majority the of Tyranny the Rethinking note 4, at xxiv–xxv, 135. at xxiv–xxv, note 4, note 45, at 16–18. note 45, 16–18. at This organization frequently mobilizes to run arun to mobilizes frequently This organization supra 106 supra 100 , , at 17–18. at TEIN TONE See id. generally S Id. Equality for Forum Director, Political Evans, Randy with Interview Telephone Id. S al., et Russell M. Glenda 100 101 102 103 104 105 106 M K mobilization can serve the LGBT community in the long term. In In term. the long in community LGBT the serve can mobilization mobilization this bans, marriage with states other Louisiana and of formation the into the campaign past extends frequently the throughout work organizations that LGBT rights statewide 2010, one-fifth of In protests. or issues legislative year on state as founded were organizations rights LGBT statewide all existing measures. other ballot or ban campaigns marriage a result of campaign when the ordinance is challenged in a referendum. in challenged a the ordinance when is referendum. campaign by opposition proactive in engages Right Religious When the the amendments, constitutional or initiatives anti-gay proposing ways. In unexpected and new in mobilize to has movement LGBT town small a initiative in Timbertown, of an anti-gay her study Arlene sociologist 1990s, the the OCA in by targeted in Oregon a town happen in had to that mobilization the Stein documents organizations. LGBT with no pre-existing Other kinds of organizing can also result from these campaigns. campaigns. these from result can also of organizing kinds Other of in 1992, chapters new 2 passed Amendment After Colorado across began (PFLAG) and Gays Lesbians of Parents and Friends LGBT of holdings their increased libraries public the state, LGBT for climate the to address force task and a books, of Colorado the University at created was campus on individuals at Boulder. (May 7, 2010). put up yard signs, and organize rallies. This requires the the requires This rallies. organize and signs, up yard put as broad well as volunteers of heterosexual mobilization a is measure the ballot where cities In coalitions. community ordinance, nondiscrimination a passed to response referendum of or coalition organization existing an typically there is nondiscrimination the to pass worked who individuals ordinance. 2016] 2016] Do Not DeleteDo ban required the formation of a statewide coalition and new and new coalition of a statewide formation ban required the organizers. between social networks had a legislative-initiated constitutional amendment to ban to ban amendment constitutional had a legislative-initiated never had state the in organizers LGBT marriage, same-sex any kind. of campaign a statewide coordinated Rimmerman et al. eds., 2000) (describing how threatening the gay community can can community gay the threatening how (describing 2000) eds., al. et Rimmerman organizations). gay of new formation incentivize met in private homes, worked with no paid staff, and engaged in in and engaged staff, with no paid worked met in private homes, neighbors. with their campaign a personal Lesbian and Gay Politics the in States C Y 37526 chp_19-1 Sheet No. 123 Side A 03/15/2016 15:53:04 A 03/15/2016 123 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 123 Side B 03/15/2016 15:53:04 M K 107 C Y ITIZEN :C 2/21/2016 PM2:31 OLLS P In her study of her study In 111 , at 14, 20. June 2011, OES TO THE [Vol. 19:1 [Vol. G In addition, there are there are In addition, 110 Queer activism challenges challenges Queer activism 109 RAUMATOLOGY RASSROOTS ,T ,G 342 (2002). note 17. 17. note IMMONS supra S Chapman Law Review Law Chapman , OVEMENTS M UGAN note 4,note at 132. 4,note 85. at LARKE C OCIAL Specifically, activists in rural areas chafed under under chafed areas in rural activists Specifically, S supra supra supra Campaigns require a level of consensus about tactics tactics about consensus of a level require Campaigns , , 112 108 at 155–78. at at 166. at at 155–78; at D IMBERLY TONE TONE Id. S Id. S Id. K This intensified mobilization can dramatize inter-community inter-community can dramatize mobilization This intensified These campaigns are often mobilized to fail. In areas where where areas In fail. to mobilized often are campaigns These Beyond the immediate community, anti-gay ballot measures measures anti-gay ballot community, immediate Beyond the 107 108 109 110 111 112 NITIATIVES AND that can be challenging for any social movement, but particularly but particularly movement, any social for that can be challenging These movement. LGBT the as diverse as one for challenging and marginalize dissent movement tend to increase campaigns activism. action and queer direct campaign work by advocating for the importance of proud, proud, of importance the for advocating by work campaign many In community. of the LGBT diverse representations at all, they are lives are represented LGBT if campaigns, men or gay middle-class gender-normative, typically white, the representing so In relationships. in monogamous lesbians LGBT within the movement is stifled community, diversity and to mainstream palatable who are less members community or women, transgender queens, drag as voters—such view. from hidden leathermen—are conflicts, particularly secondary marginalization, city-rural city-rural marginalization, secondary particularly conflicts, racial coalition and division, ideological movement differences, building. This situation, in which LGBT organizers and volunteers work work volunteers and organizers LGBT in which This situation, and demoralizing be can loses, that campaign for a tirelessly a losing particularly campaign, of a the end At challenging. put in effort for all the by may be little to show there campaign, activists. LGBT rights are unpopular, even the most diligent LGBT LGBT diligent most the even rights are unpopular, LGBT effective the most even example, For succeed. cannot campaign was until there failed bans marriage fight same-sex to campaign marriage. same-sex about opinion public in shift a dramatic frequently tensions over racial coalition building during ballot during ballot building racial coalition over tensions frequently existing racial that exacerbate campaigns measure the LGBT movement. within marginalization multiple statewide referendums and initiatives in Maine, Maine, in initiatives and referendums statewide multiple between divisions the on elaborates Simmons Kimberly ballot against organizing urban and rural in deployed strategies measures. Long-Term Impactof Anti-LGBT Politics I 234 Do Not DeleteDo impact the trajectory of the LGBT movement. Scholars have studied the directives of the statewide campaign, which was often housed housed was often which campaign, the statewide of the directives cities. in better worked that tactics used and area in an urban 37526 chp_19-1 Sheet No. 123 Side B 03/15/2016 15:53:04 B 03/15/2016 123 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 124 Side A 03/15/2016 15:53:04 .Q. 41 41 .Q. OC S How the the How 247, 247–48 2/21/2016 PM2:31 sociologist sociologist ,41 115 , OCIETY 235 235 Framing the Abortion the Abortion Framing S 531 (David A. Snow et al. Movement-Countermovement 116 In her book, In . 1628, 1631 (1996); Mayer N. Zald OVEMENTS RGANIZATIONAL M O OC 114 Movements, Countermovements, and the the and Countermovements, Movements, .J.S OCIAL S M The Consequences of Social Movements for Each Each for Movements Social of The Consequences , 101 A Competitive Framing Processes in the Abortion Abortion the in Processes Framing Competitive OVEMENTS IN AN M Countermovements may alter the framing the framing may alter Countermovements OMPANION TO 911 (2002) (analyzing the creation of “private segregationist of “private 911 (2002) (analyzing the segregationist creation C 113 OCIAL note 17. S ORCES Rethinking the Tyranny of the Majority the of Tyranny the Rethinking Nancy Whittier, Whittier, Nancy note 4, at 142. 4,note at .movements’ social 479 (2002) (studying Q. framing literature .F in This energy can divert movement resources from from resources movement can divert energy This , OC OC supra Movement and CountermovementMovement and Interaction:Mobilization, Tactics and LACKWELL 117 , supra supra B , HE , 80 S at xv. at , 43 S T ETNER TONE Id. in F S S. Staggenborg, Suzanne David Meyer & generally See Although the campaigns operate on the municipal or state state or municipal on the operate campaigns the Although , 115 116 117 113 114 M K Other regarding abortion and how they create media frames and packages in response to their their to in response packages and frames media create they how and abortion regarding opposition). eds., 2004) (discussing women’s movements and the successive countermovements that successive movements and the women’s eds., (discussing 2004) Andrews, T. Kenneth influence); their from followed Religious Right Shaped Lesbian and Gay Activism Gay and Lesbian Shaped Right Religious Dynamics and the Emergence of New Institutions: The Case of “White Flight” Schools in in Schools Flight” “White of Case The Institutions: New of Emergence the and Dynamics Mississippi Structure of Political Opportunity Political of Structure the relationship between the LGBT movement and the Religious Religious and the movement LGBT the between relationship the movement-countermovement a of example a classic Right as in a operate and countermovements Movements dynamic. movement one which in relationship oppositional sustained, similar about claims contested making by other the impacts concern. of subjects level, anti-gay ballot measures divert movement resources on the on the resources movement divert measures ballot level, anti-gay such LGBT organizations national notably, national level. Most and Gay National and Campaign (HRC) Rights Human as the startup campaign provide Force) (Task Force Lesbian Task tactics, campaign about strategize leaders, campaign funds, train run help to members staff paid energy of and time the and invest campaigns. 2016] 2016] Do Not DeleteDo (Mayer N. Zald & John D. McCarthy eds., 1987). McCarthy & John D. (Mayer N. Zald Tina Fetner documents the continual impact of the Religious the Religious of impact the continual Tina Fetner documents Religious that the argues Fetner LGBTmovement. Right on the which of choices activists’ and gay lesbian Right has “affected the back on put to issues which and rally around to issues of policies the implementation or reversed burner. It has blocked men.” gay and lesbians benefit would that (2000) (investigating how social movements regarding abortion frame their arguments in in arguments their frame abortion regarding movements social how (2000) (investigating a competitive response countermovements); to A. Deana Rohlinger, Debate: Organizational Resources, Media Strategies, and Movement-Countermovement and Movement-Countermovement Strategies, Media Resources, Organizational Debate: Dynamics & Bert & Bert Useem, Involvement State other activist causes. Escalated mobilization of the Religious of the Religious mobilization Escalated causes. other activist legal-restrictive like measures ballot in sponsoring Right on national impact strong had a bans marriage and initiatives academies” that developed inU.S. the South after court-ordered Keys, desegregation);Jennifer Dawn McCaffrey & Polarization-Vilification, FrameSaving, and Frame Debunking Debate: of social issues, create new social institutions, or generally shape or shape generally new social institutions, create of issues, social strategies. and tactics movement C Y 37526 chp_19-1 Sheet No. 124 Side A 03/15/2016 15:53:04 A 03/15/2016 124 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 124 Side B 03/15/2016 15:53:04 , M K 121 C Y 123 see also also see REATING C ALLOTPEDIA in , http://ballot , http://ballot , 2/21/2016 PM2:31 , B Georgia, In the 1990s, In the 120 Some election election Some 118 Early Religious , http://ballotpedia.org/ , http://ballotpedia.org/ ://perma.cc/9HZ4-7XR4]. ://perma.cc/9HZ4-7XR4]. 119 ALLOTPEDIA 124 , B ., at 186; 2008, Winter note 14, atnote 14, 47–48. [Vol. 19:1 [Vol. EV ALLOTPEDIA Same-sex marriage ban marriage Same-sex .R supra supra , B 125 , IST H ERMAN ADICAL , R Chapman Law Review Law Chapman Save Our Children/Let Us Marry: Gay Activists Appropriate Appropriate Activists Gay Us Marry: Our Children/Let Save note 16, at 112; H Organizational Tales: Interpreting the NGLTF Story NGLTF the Interpreting Tales: Organizational where the LGBT community had never fought a fought never had community LGBT where the note 4, atnote 134. 36–37. 4,note at 122 supra supra , note 14. note 14. note 31, at 469, 485. note 31, at 469, 485. supra supra supra , , Since the late 1990s, increasingly Religious Right Right Religious 1990s, increasingly the late Since at 63–90, 129–54. at 126 supra supra supra supra ARDISTY TONE TONE , , Oklahoma Definition of Marriage, State Question 711 (2004) 711 Question State of OklahomaMarriage, Definition Georgia Marriage Question 1 (2004) Amendment, (2004) MarriageKentucky Amendment Id. S McCreery, Patrick H S John D’Emilio, John Beyond the effect on the community and movement, anti-gay and movement, community the on Beyond the effect 120 121 122 123 124 125 126 118 119 ERMAN HANGE campaigns often emphasize the benefits of children having one one having children of the benefits often emphasize campaigns and of marriage sanctity with the along one father, mother and in elementary marriage of same-sex the teaching about concerns schools. the Task Force developed a program called Fight the Right, Fight the Right, called program a developed Force the Task gay and member board organization by was criticized which completely reactive, as “thoroughly John D’Emilio historian than on rather did opponents political on what one’s dependent or needed.” wanted communities what queer and Kentucky, cycles completely diverted the energy of national organizations. organizations. of national the energy diverted cycles completely same-sex faced eleven states 2004 election, the November In legislatively were referred these bans of most bans; marriage Oklahoma, like in states and occurred initiatives ballot measure. National organization staff members spent time time spent members staff organization National ballot measure. and eleven states, in all leaders campaigns training and funding be victorious. to likely most state the as Oregon they triaged pedia.org/Georgia_Marriage_Amendment,_Question_1_(2004) [http the Rhetoric of Child Protectionism Child of Rhetoric the C 236 Do Not DeleteDo Kentucky_Marriage_Amendment_(2004) [http://perma.cc/SV94-H86N]. organizations and the direction of the movement. of the direction and organizations ballot measures have dramatic psychological impacts not only on on only not impacts psychological dramatic have ballot measures and gay, lesbian, also but campaigns, in involved individuals Religious Right the broader community. in bisexual individuals in transphobia or homophobia existing on rely often campaigns a campaign. to win in order public opinion campaigns to rescind municipal nondiscrimination laws include include laws nondiscrimination municipal rescind to campaigns specifically individuals, transgender about arguments women transgender frame arguments These women. transgender and women of the bathrooms to invade trying as “men in dresses” http://ballotpedia.org/Oklahoma_Definition_of_Marriage,_State_Question_711_(2004) http://ballotpedia.org/Oklahoma_Definition_of_Marriage,_State_Question_711_(2004) [http://perma.cc/M937-ND3V]. Right campaigns relied on messaging about gay men as sexual men as sexual gay about on messaging relied Right campaigns into legalistic the 1990s in transformed was which predators, rights.” about “special arguments H 37526 chp_19-1 Sheet No. 124 Side B 03/15/2016 15:53:04 B 03/15/2016 124 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 125 Side A 03/15/2016 15:53:04 , , note most supra 130 , 2/21/2016 PM2:31 note 90, at 316. Surveys taken taken Surveys 237 237 132 supra supra Doing Gender, Determining Determining Gender, Doing to fight for justice and for justice and to fight California’s Ban on Same-Sex 128 Psychological Reactions note 90, at 307. noteat 90, Studies show that contentious that contentious Studies show supra supra , 131 These psychological effects extend extend effects These psychological 32, of gender the 37 (2014) (discussing construction Y ’ 134 note 39, at 233. at 233. note 39, OC note 90, at 316–22. Impact of Marriage Restriction Amendments on Family Family on Amendments Restriction Marriage of Impact note 90. note 90. &S note 90, at 62; Russell & Richards, & Richards, 62; Russell at 90, note supra note 90, at 86; Rostosky,note 90, at supra supra 135 , Laurel Westbrook & Kristen Schilt, Schilt, & Kristen Westbrook Laurel supra supra supra supra ENDER Rethinking the Tyranny of the Majority the of Tyranny the Rethinking The anti-gay rhetoric of campaigns can lead to can lead campaigns of rhetoric The anti-gay and to publicly disclose their sexuality, their disclose and to publicly , supra 133 129 Psychological Reactions Psychological OLDBERG see also also see 242, 253 (2011). 358, 370–71 (2011). , G 28 The proliferation of these homophobic and homophobic these of proliferation The &G 127 Riggle et al., et al., Riggle SSUES SSUES at 28; .I .I EEN OC OC See See Rostosky, K al. et Riggle Rostosky et al., W. Fingerhut, Maisel & Adam C. Natalya Richards, & Russell et al., Horne G. Sharon Id. The impact of the passage of an anti-gay law also leads to to of an anti-gay also leads law the passage The impact of The evidence for negative psychological impacts is is impacts psychological for negative The evidence 128 129 130 131 132 133 134 135 127 M K 67 J. S 90, at 305. high rates of fear, creation of stress due to community divisions, divisions, community to due stress of creation fear, of rates high in an increase and activity, of anti-gay awareness heightened homophobia. internalized research uncovers negative psychological and behavioral impacts. impacts. behavioral and psychological negative uncovers research local a of experience the that demonstrate studies Multiple and bisexual lesbian, gay, for stressful is campaign anti-gay state. of a city or residents right before the vote on California Proposition 8 showed high high 8 showed California Proposition vote on the right before and familial on personal impacts deleterious levels of anger and relationships. panics about transgender women). women). transgender about panics Marriage: The Campaign and its Effects on Gay, Lesbian, and Bisexual Individuals Bisexual and Lesbian, Gay, on Effects its and Campaign The Marriage: children. same-sex marriage ballot measures contribute to increased to contribute increased measures ballot marriage same-sex state residents bisexual gay, and lesbian, among stress minority activity. of anti-gay awareness and heightened 67 J. S Gender: Transgender People, Gender Panics, and the Maintenance of the Sex/Gender/ Sex/Gender/ the of Maintenance the and Panics, Gender People, Transgender Gender: System Sexuality 2016] 2016] Do Not DeleteDo negative psychological effects. Some of the most detailed work work detailed the most of Some effects. psychological negative and her colleagues Russell Glenda scholar by conducted has been study longitudinal A 2. Amendment of Colorado about the effects the during Colorado of residents and bisexual gay, of lesbian, equal rights, beyond LGBT individuals to their family members, who may may who members, family their to individuals LGBT beyond lesbian and gay for and concern stress heightened experience lives. their in people transphobic arguments can be psychologically painful for LGBT LGBT for painful be psychologically can arguments transphobic community dangerous times at and hostile a and create residents in. to live vote the of legal outcome the beyond extends and overwhelming some there is Although itself. experience to the campaign and gay, mobilize lesbian, campaigns these evidence that vote more often, to bisexual individuals Members of Lesbian, Gay, and Bisexual Individuals: A Mixed-Method Approach Mixed-Method A Individuals: Bisexual and Gay, Lesbian, of Members C Y 37526 chp_19-1 Sheet No. 125 Side A 03/15/2016 15:53:04 A 03/15/2016 125 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 125 Side B 03/15/2016 15:53:04 M K C Y , 100 2/21/2016 PM2:31 [Vol. 19:1 [Vol. The Impact of Institutional Discrimination on on Discrimination Institutional of The Impact ONCLUSION at 17–18. , C Chapman Law Review Law Chapman note 106 note More recently, psychologists have found that that found have psychologists recently, More supra supra 452, 454 (2010). 136 137 EALTH .H UB al., et Russell et al., L. Hatzenbuehler Mark The history of anti-gay ballot measures extends beyond beyond extends measures ballot anti-gay The history of on focused have disproportionately legal scholars Although 136 137 .J.P M A same-sex marriage bans to the first referendums on municipal municipal on referendums first to the bans marriage same-sex Legal-restrictive in the 1970s. ordinances nondiscrimination most been the have bans marriage same-sex and initiatives the by process the initiative uses of proactive systematic, policies laws and in anti-gay resulted and have Religious Right ballot of forms both Although the courts. in overturned that were Right Religious the the courts, by have been outlawed measures municipal against referendums sponsoring in persists still Religious These rights. LGBT support that laws or ordinances as anti-transgender have become increasingly Right campaigns shifted bisexual individuals has and gay, of lesbian, the support marriage. same-sex of legalization the with are civil rights about measures ballot whether of the question to the extra-legal paid less attention there has been tyrannical, the of Most initiatives. and referendums these of consequences in the conducted been has consequences on extra-legal research or law. science not political psychology, and sociology of fields for extra-legal consequences that the demonstrates This research the and impact negative mostly are measures anti-gay the referendum by affected directly individuals and community of the trajectory the broader along with or initiative in question, measures, of said the outcome of Regardless LGBT movement. anti-gay with an in a community living of the experiences may campaign on measure a and working campaign ballot for LGBT individuals. When challenging be themselves this Article measures, of ballot aspects the tyrannical considering of the rate just analyzing beyond move to scholars pushes the that suggests and instead measures of said passage may be initiatives and referendums these of impact extra-legal important. just as living in states with instituted bans on same-sex marriage marriage bans on same-sex instituted with in states living bisexual individuals and gay, of lesbian, the probability increases and disorders, mood anxiety, including issues, psychiatric having use. alcohol Psychiatric Disorders in Lesbian, Gay, and Bisexual Populations: A Prospective Study A Prospective Populations: Bisexual and Gay, Lesbian, in Disorders Psychiatric 238 Do Not DeleteDo legal-restrictive initiative Amendment 2 suggests that the the that suggests 2 Amendment initiative legal-restrictive after decades persist may measures ballot of said effects harmful the initiative. 37526 chp_19-1 Sheet No. 125 Side B 03/15/2016 15:53:04 B 03/15/2016 125 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 126 Side A 03/15/2016 15:53:04 2/21/2016 PM2:31 Like other 138 note 85 (focusing on on note 85 (focusing 239 239 supra The Origins of Judicial Activism in the Protection Protection the in Activism Judicial of Origins The L.J. 1287 and process the political oforigins (1982) (discussing the Rethinking the Tyranny of the Majority the of Tyranny the Rethinking Robert M. Cover, ALE , 91 Y See generally generally See This research calls for a holistic understanding of the impact impact of the understanding holistic a for calls research This 138 M K of Minorities of of ballot measures about civil rights on gender, racial, and sexual sexual and racial, on gender, civil rights about measures of ballot documented have researchers Other members. group minority minority other for measures ballot these of the consequences disenfranchisement. including group members, 2016] 2016] Do Not DeleteDo scholars, I echo the need for more stringent judicial review of of review judicial stringent need for more echo the I scholars, referendums these rights civil before affecting ballot measures extra-legal extreme The voters. go before and initiatives LGBT individuals, for measures ballot these of consequences judicial during should be included and movements communities, Although initiatives. of said harm the potential of part review as the the people,” of to the “will deferential judges are often of anti-gay part is that tyranny majoritarian layered complex, reasonable as a considered be should measures ballot initiatives. and referendum these to restrict justification the effect of ballot measures on the latino/a community and discussing their difficulty in in difficulty their discussing and community the latino/a on measures of ballot effect the process). political the in engaging the difficulty that minorities have in participating); have minorities that the difficulty Johnson, C Y 37526 chp_19-1 Sheet No. 126 Side A 03/15/2016 15:53:04 A 03/15/2016 126 Side Sheet No. chp_19-1 37526 37526 chp_19-1 Sheet No. 126 Side B 03/15/2016 15:53:04 M K C Y 2/21/2016 PM2:31 [Vol. 19:1 [Vol. Chapman Law Review Law Chapman 240 Do Not DeleteDo 37526 chp_19-1 Sheet No. 126 Side B 03/15/2016 15:53:04 B 03/15/2016 126 Side Sheet No. chp_19-1 37526