The Courts, the Ballot Box, and Gay Rights

How Our Governing Institutions Shape the Same-Sex Marriage Debate

Joseph Mello

• Publisher: University Press of Kansas
• Year: 2016
• Print ISBN: 9780700638079, 9780700622917
• eBook ISBN: 9780700622924
• Topic: Politics & International Relations
• Subtopic: Courts
• Index: Politics & International Relations

If the same-sex marriage debate tells us one thing, it's that rights do not exist in a vacuum. What works for one side at the ballot box often fails in the courtroom. Conservative opponents of same-sex marriage used appeals to religious liberty and parental rights to win ballot measure campaigns, but could not duplicate this success in court. Looking at the same-sex marriage debate at the ballot box and in the courts, this timely book offers unique insights into one of the most fluid social and legal issues of our day—and into the role of institutional context in how rights are used.

Why, Joseph Mello asks, did conservative opponents of same-sex marriage enjoy such an advantage when debating this issue in the popular arena of a ballot measure campaign? And why were they less successful at mobilizing the language of rights in the courts? His analysis shows us that rights don't just entitle us to resources; they also shape the way we see ourselves and are perceived by others. Thus, by using the language of rights to frame their cause, conservative opponents of same-sex marriage were able to construe themselves as victims of oppression, their religious and moral beliefs under threat. The same language, however, proved less useful, or even counterproductive, in courtrooms, Mello concludes, because the court’s norms and constraints force arguments to undergo more searching scrutiny—and rights-based arguments against same-sex marriage contain discriminatory stereotypes that cannot be supported with evidence.

In its analysis of the same-sex marriage issue, The Courts, the Ballot Box, and Gay Rights provides insights that illuminate some of the most salient rights-based issues of our time—including affirmative action, abortion, immigration, and drug policy. The book offers a new way of understanding how such issues are decided, and how important context can be in determining the outcome.

1. The Mobilization of Bias

The majority today . . . seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. . . . I have no choice but to dissent. . . . This dissent . . . is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people . . . or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

—CHIEF JUSTICE JOHN ROBERTS

(Dissenting opinion, Obergefell v. Hodges 2015)

The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” . . . This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”

—JUSTICE ANTHONY KENNEDY

(Obergefell v. Hodges 2015)

The US Supreme Court’s landmark decision in Obergefell v. Hodges (2015) effectively ended an intense nationwide debate over the proper definition of marriage by legalizing same-sex marriage in all fifty states. Although much of this nearly two-decades-long debate was spent weighing the substantive implications of continuing to define marriage as a union of one man and one woman, the case itself touched not just on the question of what the definition of marriage should be but also on who should be charged with determining that definition—the courts or “the people.” The question of who should decide issues of fundamental rights has been a recurring point of reflection for the Supreme Court justices of late. In 2014 they issued an emphatic defense of Michigan’s right to determine affirmative action policy through the ballot measure process (Schuette v. Coalition to Defend Affirmative Action 2014).¹ The following term, the Court heard two cases involving the constitutionality of laws passed through popular referendum. In Obergefell it invalidated the laws of twenty-eight states that had passed ballot measures defining marriage as between one man and one woman (Obergefell v. Hodges 2015), but just a few days later it issued an opinion that upheld Arizona voters’ right to alter their redistricting policy through popular referendum (Arizona State Legislature v. Arizona Independent Redistricting Commission 2015). Clearly the Court has not yet developed a consistent answer to the question of whether citizens should be able to vote directly on issues of fundamental rights.

Increasingly, some of the most salient rights-based issues of our time, including same-sex marriage,² affirmative action,³ abortion,⁴ immigration,⁵ and drug policy⁶ are being decided through the ballot measure process. Yet, discussions of the merits of deciding these issues in this environment have tended to focus on the same well-worn theoretical debates. Proponents of the ballot measure process argue that it is the most democratic way to decide difficult moral questions (Schmidt 1989, 25–40). This echoes the sentiments of the progressive reformers who originally pushed for the expansion of the initiative and referendum process in the early twentieth century. They saw this process as a way for citizens to regulate the power of special interests and check the influence of corrupt elites (Cronin 1989, 43–59; Schmidt 1989, 6–10). In contrast, courts have often been regarded as antidemocratic institutions because they are, by design, insulated from the influences of popular will (Bickel 1962). Critics of the ballot measure process have responded by pointing out that it has often been used as a tool of retrenchment to roll back minority rights (Bell 1978; Cronin 1989, 90–124; Gamble 1997; Miller 2001). These critics question the value of endorsing a strictly majoritarian definition of democracy and contend that protecting vulnerable or unpopular minorities requires that we place some rights outside of the purview of potentially hostile and discriminatory majorities (Cronin 1989, 7–37).

These scholars raise valid concerns, but such arguments oversimplify this issue somewhat by focusing too much on the question of who should decide and not enough on how these different institutional environments affect the structure and tenor of these debates. This is important because institutions do more than just aggregate the individual preferences of the actors working within them; they consist of norms and constraints that structure individual behavior and help determine outcomes (Riker 1980; March and Olsen 1984; Smith 1988; Gillman and Clayton 1999). As a result, moving this debate from one institutional environment to another does not just change the audience, it alters the entire nature of the debate itself in some fundamental, and often surprising, ways.

In this book, I seek to better understand how institutional norms and constraints shape debates over fundamental rights. Using conservative⁷ opposition⁸ to same-sex marriage as an extended case study, I analyze arguments made by opponents of marriage equality both inside and outside of the courtroom. I find that conservative opponents of same-sex marriage were able to use rights language to effectively argue against marriage equality in ballot measure campaigns but that they typically avoided using the language of rights to frame their arguments after the debate moved inside the courtroom. This finding is counterintuitive given that the language of rights would seem well suited for a legal environment. This raises two important questions that motivate the inquiry conducted in this book: Why did conservative opponents of same-sex marriage enjoy such an advantage when debating this issue in the popular arena of a ballot measure campaign? And why were they less successful at mobilizing the language of rights when arguing against it in more elite-centered environments?

Although most early scholarship on rights-based social movements was focused on efforts to bring about social change, rights discourse is also frequently used by conservatives as a means of protecting status-quo power structures (Goldberg-Hiller and Milner 2003; Haltom and McCann 2004; Dudas 2008). During same-sex marriage ballot measure campaigns, conservatives often used the discourse of parental rights and religious liberty to counter the rights-based appeals of marriage equality activists. An activist working to pass California’s Proposition 8 in 2008 summed up the opinions of many opponents of marriage equality when he argued:

The marriage controversy has been contaminated by the language of rights. We must remember there are other groups and other people who also have their own rights besides gays. We have to think about children, their right to be raised by a mother and a father. We have to think about religious groups that believe that marriage is an institution established by God who are right now are [sic] having their rights violated by the supposed rights of the gay portion of our society. (Miranda 2008, 53)

Jim Garlow, a pastor at Skyline Church in San Diego, expressed a similar sentiment in a speech he gave to opponents of same-sex marriage at a rally in support of Proposition 8:

Rights have been crushed under every time same-sex marriage is legal. Some pastors have been threatened with jail. Many have been muzzled and silenced. Churches have been threatened and intimidated and parents . . . and business persons [sic] as well. . . . This is ultimately really not about marriage and homosexuality at its core. At its core is they have found a loophole hiding under the guise of civil rights by which they can put underfoot and crush underfoot the rights of every person who has a Biblical worldview. That is what is at stake. (2008a, 45–46)

This language is incredibly powerful. Using rights discourse in this way allowed conservative opponents of same-sex marriage to construct an identity of themselves as victims of oppression and to construct gays and lesbians as oppressors. Such logic mobilized conservative activists and helped them appeal to a wider audience as well. Although one must be careful not to assign too much instrumental importance to the use of rights language, it is notable that conservatives won thirty-four of the thirty-nine same-sex marriage ballot measure campaigns that took place from 1998 to 2012.

Yet despite their considerable emotional appeal, such arguments were almost never used by conservatives when arguing this issue in a courtroom environment. I argue that this is because our modern conception of law as an “arena of reason” (Fitzpatrick 1992; Darian-Smith 2010) has shaped courtroom procedures, ensuring that the claims of conservatives will be subjected to a level of scrutiny inside the courtroom that they do not receive in more popular arenas. Though this conservative rights language is not overtly discriminatory, these arguments rely on an implicit assumption that gays and lesbians are “dangerous” and “deviant” others whose selfish and excessive rights claims threaten the legitimate rights of the majority of Americans (Schacter 1994; Goldberg-Hiller and Milner 2003; Dudas 2008). This logic builds on a long-standing conception of citizenship in which individuals must prove they deserve equal rights by disciplining what are thought to be deviant sexual urges (Foucault 1990; Comaroff and Comaroff 1991, 365–404; Merry 2000, 221–257). Although these arguments would be rejected by many if made explicitly, when masked by the secular discourse of rights, these implicit moral assumptions are free to operate at a subconscious level, feeding on latent stereotypes and helping to foment popular opposition to same-sex marriage. In this way, rights discourse is used as a means of transforming arguments based on moral assumptions into something acceptable to a more secular audience (Schacter 1994, 289–290; Herman 1997, 115, 144; Hardisty 1999, 114).

Litigation has proven an effective tactic for advocates of gay and lesbian rights in part because the courtroom environment allows them to move beyond simple sound bites and more successf...

Table of contents

• Front Cover
• Half Title Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• 1. The Mobilization of Bias
• 2. Citizens or Deviants? Rights and the Construction of Gay Identities
• 3. Sites of Conflict: How Institutions Shape the Same-Sex Marriage Debate
• 4. No Right to Object? Opposition to Same-Sex Marriage in the Golden State
• 5. “A Place Apart”: Opposition to Same-Sex Marriage in Maine
• 6. Taking (or Leaving) the Initiative Process
• Appendix A. Same-Sex Marriage Ballot Measures
• Appendix B. Individualism Master Frame Logit Regression
• Appendix C. Religion, Threat, or Slippery Slope Subframe Logit Regression
• Notes
• Works Cited
• Cases Cited
• Index
• Back Cover