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Lawyering for Marriage Equality UCLA UCLA Public Law & Legal Theory Series Title Lawyering for Marriage Equality Permalink https://escholarship.org/uc/item/2ph1r9d0 Authors Cummings, Scott L NeJaime, Douglas Publication Date 2010-05-11 Peer reviewed eScholarship.org Powered by the California Digital Library University of California LAWYERING FOR MARRIAGE EQUALITY * Scott L. Cummings ** Douglas NeJaime Critics of litigation seeking to establish the right of same-sex couples to marry argue that it has produced a backlash undercutting the movement for marriage equality. In this account, movement lawyers emerge as agents of backlash: naively turning to the courts ahead of public opinion, ignoring more productive political alternatives, and ultimately hurting the very cause they purport to advance by securing a court victory that mobilizes opponents to repeal it. This Article challenges the backlash thesis through a close analysis of the California case, which contradicts the portrait of movement lawyers as unsophisticated rights crusaders and casts doubt on the causal claim that court decisions upholding same-sex couples’ right to marry have harmed the movement. * Professor of Law, UCLA School of Law. ** Associate Professor of Law, Loyola Law School, Los Angeles. We are enormously grateful to Nan Hunter and Brad Sears for the invitation to participate in the UCLA conference, “Sexuality and Gender Law: Assessing the Field, Envisioning the Future.” For their helpful comments, we thank Rick Abel, Mary Bonauto, Mary Anne Case, David Cruz, Bill Eskridge, Naomi Goldberg, Suzanne Goldberg, Lani Guinier, Anna-Maria Marshall, Melissa Murray, Clare Pastore, Nancy Polikoff, Jane Schacter, and Reva Siegel. We also benefitted from the feedback of participants at the Southern California Review of Law and Social Justice Proposition 8 Symposium and the Clinical Theory Workshop at New York Law School. This Article would not have been possible without the dedication of the UCLA Law Review editors, especially Brett Bissett, Benjamin Friedman, Lorig Kalaydjian, Seth Korman, Priscilla Parrett, Darcy Pottle, and Alyssa Simon. We were, in addition, fortunate to receive excellent research assistance from Tom Boone and Laura Cadra at Loyola’s William M. Rains Law Library and from the staff at UCLA’s Hugh and Hazel Darling Library. Finally, we are deeply indebted to the advocates whose work to advance marriage equality in California inspired this project and whose generous assistance was crucial to its completion. 1 57:5 Cummings & NeJaimeCummings and NeJaime Chiefs Proof 6-CME SSRN 051110(5/11/2010 8:39:00 AM) 2 DRAFT: Do not cite. INTRODUCTION ................................................ 3 I. THEORETICAL FRAMEWORK: THE BACKLASH DEBATE ................... 11 II. CASE STUDY: THE CALIFORNIA MARRIAGE EQUALITY MOVEMENT .......... 18 A. The Lessons of Litigation Past: Before California ................................. 19 B. Litigation Avoidance: The Legislative Pursuit of Domestic Partnership ........................... 23 1. After Hawaii: The California No- Litigation Strategy ............................ 23 2. Legislative Incrementalism and Countermobilization: From Domestic Partner Registry to Proposition 22 ..................... 31 3. Stepping Stones: Planning for Marriage by Winning Domestic Partnership ................... 39 C. The Best Laid Plans: Litigating Marriage by Necessity ...................................... 48 1. Cooler Heads Prevail: Rejecting Litigation (Again) by Consensus ........................... 48 2. Litigating in Defense of Domestic Partnership ........................... 51 3. Game Change: Marriage Equality in San Francisco .................................. 55 4. Winning Despite Themselves: In re Marriage Cases ................................. 65 D. On the Sidelines: Proposition 8, Perry, and the Plan for 2012 ..................................... 83 III. ANALYSIS: THE LIMITS OF BACKLASH ........................ 98 A. Control Over Ends and Means ....................... 98 1. Constructing the Agenda: The Path to Marriage ....................................... 98 2. Controlling the Tactics: Litigation Triggers and Movement Responses ........................ 102 a. Causes of Litigation ....................... 103 b. Mechanisms of Control ...................... 106 B. Multidimensional Advocacy ........................ 108 1. Legislation to Enhance Litigation ............. 109 2. Litigation to Enhance Legislation ............. 111 3. Litigation as a Legislative Shield ............ 112 4. Public Education .............................. 112 5. Beyond (But Not Without) Litigation ........... 115 C. Backlash Mechanics and the Causation Problem ..... 117 1. Judicial Exceptionalism? ...................... 117 2. Baselines and Metrics ......................... 127 CONCLUSION: TOWARD A THEORY OF MOVEMENT LAWYERING—IN THE FACE OF BACKLASH .............................................. 130 57:5 Cummings & NeJaimeCummings and NeJaime Chiefs Proof 6-CME SSRN 051110(5/11/2010 8:39:00 AM) Lawyering for Marriage Equality 3 INTRODUCTION The movement to achieve marriage equality for same-sex couples has been called “the last great civil rights struggle.”1 The analogy to the civil rights movement for racial equality in the 1950s and 1960s is deliberately asserted by activists and, in some respects, quite apt.2 Both groups comprise a minority of the population in the United States and have been subject to systematic discrimination. And, crucially, both have turned to courts to protect rights thwarted by majoritarian political institutions. As one result of civil rights litigation, there is a close legal precedent for marriage equality activists: Loving v. Virginia,3 the 1967 U.S. Supreme Court decision that overturned prohibitions on interracial marriage.4 But beyond Loving, the two movements have shared a deeper history in which lawyers have been important leaders and litigation has loomed large as a strategy for policy reform. Much like the iconic role played by the NAACP Legal Defense and Educational Fund, Inc. (LDF) in the movement for racial equality, lawyers from elite public interest organizations—Lambda Legal, the ACLU Lesbian Gay Bisexual & Transgender (LGBT) Project, the National Center for Lesbian Rights (NCLR), and Gay & Lesbian Advocates & Defenders (GLAD)—have been pivotal in shaping the path toward marriage equality. 1. ADVOCATE, Dec. 2008. 2. See Craig J. Konnoth, Note, Created in Its Image: The Race Analogy, Gay Identity, and Gay Litigation in the 1950s–1970s, 119 YALE L.J. 316 (2009). 3. 388 U.S. 1 (1967). 4. Loving v. Virginia, 388 U.S. 1 (1967). On the power of the antimiscegenation analogy, see Stephen Clark, Same-Sex but Equal: Reformulating the Miscegenation Analogy, 34 RUTGERS L.J. 107 (2002); Andrew Koppelman, Same-Sex Marriage and Public Policy: The Miscegenation Precedents, 16 QUINNIPIAC L. REV. 105 (1996); Catherine Smith, Queer as Black Folk?, 2007 WIS. L. REV. 379; James Trosino, American Wedding: Same-Sex Marriage and the Miscegenation Analogy, 73 B.U. L. REV. 93 (1993). 57:5 Cummings & NeJaimeCummings and NeJaime Chiefs Proof 6-CME SSRN 051110(5/11/2010 8:39:00 AM) 4 DRAFT: Do not cite. Critics of the civil rights analogy are quick to point out the historical, political, and legal differences between the marriage equality and civil rights movements,5 summed up in the wry phrase “gay is not the new black.”6 Yet the pull of the civil rights framework is strong, not just as a way of legitimizing the marriage equality movement’s use of litigation, but also as a way of judging it. For scholars of law and social change, the emergence of marriage equality as the seminal post– civil rights progressive legal reform movement has provided an opportunity to test the contemporary validity of theories based on the now-dated civil rights paradigm. The result has been a renewed—and vigorous—debate over the promise and perils of social change litigation, with the marriage equality movement at the center. This debate has revolved around the explanatory power of the “backlash thesis”7—the proposition that litigation does more harm than good for social change movements by producing countermobilization that makes reform goals more difficult to achieve. The thesis is most closely identified with two scholars, University of Chicago political scientist Gerald Rosenberg and Harvard legal historian Michael Klarman, each of whom has developed a backlash analysis of Brown v. Board of Education,8 and applied the backlash framework to evaluate the impact of crucial marriage equality cases.9 In general, the backlash account emphasizes the institutional role of courts and the political 5. See Randall Kennedy, Marriage and the Struggle for Gay, Lesbian, and Black Liberation, 2005 UTAH L. REV. 781, 792. 6. Irene Monroe, Gay Is Not the New Black, HUFFINGTON POST, Dec. 16, 2008, http://www.huffingtonpost.com/irene-monroe/gay-is- emnotem-the-new-bl_b_151573.html. 7. Thomas M. Keck, Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights, 43 LAW & SOC’Y REV. 151, 152 (2009); see also Linda J. Lacey & D. Marianne Blair, Coping With the Aftermath of Victory, 40 TULSA L. REV. 371 (2005). 8. 347 U.S. 483 (1954). 9. See GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (2008); Michael Klarman, Brown and Lawrence (and Goodridge), 104 MICH. L. REV. 431 (2005). 57:5 Cummings & NeJaimeCummings and NeJaime Chiefs Proof 6-CME SSRN 051110(5/11/2010 8:39:00 AM) Lawyering for Marriage Equality 5 reaction that their decisions produce: Courts establish
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