THE COURTS, THE BALLOT BOX, AND GAY RIGHTS: HOW OUR GOVERNING INSTITUTIONS SHAPE THE SAME-SEX MARRIAGE DEBATE

Vol. 27 No. 1 (January 2017) pp. 11-13

THE COURTS, THE BALLOT BOX, AND GAY RIGHTS: HOW OUR GOVERNING INSTITUTIONS SHAPE THE SAME-SEX MARRIAGE DEBATE, by Joseph Mello. Kansas: University Press of Kansas, 2016. Cloth: $34.95 ISBN: 978-0700622917.

Reviewed by Natalie P. Johnson, Department of Political Science and Geography, Francis Marion University. Email: njohnson@fmarion.edu

Joseph Mello presents a compelling account of the successes and failures of the movement for same-sex marriage in two different venues: the courts and through the people via ballot initiatives. The ultimate question that has plagued law and society scholars for years is whether it should be the courts or the people who ultimately decide what are fundamental rights and who should be given these fundamental rights. Conservatives often argue the courts usurp the powers of the people and democratic process by making these decisions, with there being a backlash to this usurpation of power (Rosenberg, 2006).

Mello explores the campaigns of both opponents and proponents in the fight for same-sex marriage and their relative victories and losses. What is important to remember, according to Mello, is that various institutional structures limit arguments that can be made. The crux of Mello’s argument is that conservative groups opposing same-sex marriage were often successful in ballot initiatives because they could frame the message in a certain way. However, these arguments did not translate into success in the courtroom. The opposite was true for proponents of same-sex marriage. The key difference between ballot initiatives and the courtroom is that the courtroom welcomes, and expects, long drawn out arguments whereas measures put to the public must have a short and eye-catching message. The rights based claims are not as easily defended in the courtroom but make excellent tag lines for ballot measures.

Chapter One provides an introduction to the work and the overall argument. The main argument is that institutional venues shape the arguments that are made. Thus, by looking at the insider (court) and outsider (ballot initiative) strategies, Mello is able to discern which arguments resonated in which venues. Additionally, by looking at “conservative opposition to same-sex marriage” (p. 3) the author is able parse out the successes and failures of the same-sex marriage movement. Two fundamental questions drive the study, which are: 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?” (p. 3). What is particularly interesting and captivating about Mello’s account is the understanding that the same arguments conservative groups used in the public arena were the very arguments that resulted in their downfall in the courts and therefore expands sociolegal scholarship beyond the doors of the courtrooms. This phenomenon is explored in the substantive chapters on Maine and California.

Chapter Two examines the history of the gay rights movement in the United States. This is the foundation for the discussion of the conservative opposition and therefore focuses on measures taken to cast gay men and lesbians as sexual deviants. Mello explores the stereotypes that befell gay men and lesbians as well as providing crucial background to the debate over same-sex marriage and indeed broader gay rights movement illustrating the history of the movement prior to the Stonewall riots in 1969. Mello provides an accurate and [*12] detailed history of the countermobilization against gay rights movement, including the publicizing of the HIV/AIDS crisis, movements to restrict employment for gay men and casting homosexuality as a threat to marriage and the family, two of the most sacred institutions in the United States.

Chapter Three provides an overview of aspects of opposition to same-sex marriage with an examination of the organizations leading this fight. As Mello points out, successful decisions mobilize the opposition and this occurred almost immediately after the decision in Hawaii in BAEHR V. LEWIN in 1993. The initial empirical work in this chapter illustrates that opponents to same-sex marriage are likely to make “rights claims” outside of the court room and are much more likely to be successful in their campaign when they can do this hence their success in ballot measures (p. 43). Frame analysis is particularly effective in this account as it allows for a deeper understanding of nuances around the opposition to same-sex marriage, much of which is understudied in the academy.

The two key substantive chapters of the book, Chapters Four and Five, focus on the fight for same-sex marriage in California and Maine, respectively. Both of these states had long and drawn out discussions around same-sex marriage in a number of institutional settings. Mello provides a rich and comprehensive analysis of the battle over same-sex marriage in California and Maine illustrating the lack of viability of the conservative opposition’s arguments in the courtroom.

Chapter Four examines the fight in California, perhaps one of the best-known battles over same-sex marriage that lasted over a decade. After providing a brief overview of the debate in California, Mello spends the bulk of the chapter analyzing Proposition 8 (Prop 8) in 2008, a ballot measure put to the voters in California around the legalization of same-sex marriage. Mello illustrates the use of language in different institutional settings substantially impacted the outcome of this initiative. In the public domain, proponents of Prop 8 used secular language when in courts but outside galvanized support among religious organizations. The final push for Prop 8 seemed to occur with the argument from conservative opposition to same-sex marriage that it would force school children to be taught about homosexuality. While proponents of same-sex marriage in California did their best to dispel this rumor it proved a decisive issue in exit polling and Prop 8 passed with 52 to 48 percent of the vote (p. 85). What is especially interesting and noteworthy about this chapter is the rights discourse used by conservative opponents of same-sex marriage casting themselves as the minority who simply want to assert their rights and protect the minds of children. Mello provides a strong and detailed discussion of the rights based, individual claims made by the opposition that resulted in a “Yes” on Prop 8. Turning to the Court battle in PERRY V. SCHWARZENEGGER, Mello illustrates the different arguments each side had to use as the opponents of same-sex marriage could not use religious based claims in the courtroom and did not have the evidence to discredit expert witnesses speaking in favor of same-sex marriage.

On the opposite coast of the United States, Maine provided conservative opposition to same-sex marriage an opportunity to prevent the legalization of same-sex marriage. While the Northeast traditionally is not receptive to ballot initiatives, Maine is an exception with particularly strong citizen involvement. In the fight over same-sex marriage, the citizens of Maine were able to galvanize support to put a measure on the ballot in 2012 by using similar tactics to the proponents of Prop 8 in California. Maine voters, however, chose to legalize same-sex marriage. Similar to California, opponents of the bill (LD 1020) sought to frame the argument as a moral one and protecting the traditional family and its importance in society. This proved unsuccessful but [*13] measures began almost immediately after it was signed to repeal this law, again framing the issue as protecting the family and parental rights (Question 1). Another facet of the argument was based around opponents casting themselves as the victims and facing discrimination if they did not fully support same-sex marriage and thus stifling debate in the state. Opponents to Question 1 attempted to rebuff these arguments and provide voters with their own rights based claims, focusing similarly to California about teaching in public schools. The Question 1 campaign in 2009 was ultimately successful and same-sex marriage became illegal in Maine. However, in 2012, another Question 1 campaign had a different fate as the issue was reframed as one about family rather than rights (p. 137). Maine’s success in the 2012 election illustrated for the first time that proponents of same-sex marriage could also have success in ballot initiatives by framing their argument in a specific way – by knowing the audience to whom they are speaking.

Chapter six concludes the study and offers implications of the work. Echoing the introduction, the conclusion emphasizes that institutional environments shape the arguments that are made and also shape the successes that are to be had.

The richness of the accounts from California and Maine provide the primary weakness of the book as well – the case study method. While Chapter Three provides an empirical overview of the opposition to same-sex marriage, the case study approach is limited in the sense that the reader only truly understands opposition in these two states and there is limited opportunity for generalization. While Mello points out that these two states were bellwether states for movement on same-sex marriage and ballot initiatives, it would be useful to understand more fully the movement across the United States and whether the actions in these states can be generalized. While a large N study would miss much of the richness present in Mello’s narrative it would have nevertheless been useful to understand the broader nature of same-sex marriage and ballot initiatives or popular movements. Many of the early states that legalized same-sex marriage did so via the courts. However, there was a distinct drop in court victories for later states. Was this owing to ballot initiatives or other popular movements? Looking at some other states would allow for an answer to this question. However, despite these few, narrow limitations, the book is a fascinating account of what will continue to be a key line of inquiry for law and society scholars, and political scientists and sociologists more broadly. Overall, it is a fascinating account of the struggle in two very different institutional venues that seek to persuade two very different subsets of the population. That the two venues require different strategies and language perhaps should not be surprising, but yet the starkly different victories achieved by each group are.

REFERENCES

Rosenberg, Gerald. 2008. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

CASE REFERENCES

BAEHR V. LEWIN, 74 HAW. 530 (1993).

PERRY V. SCHWARZENEGGER 704 F.Supp.2d 921 (2010).

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© Copyright 2017 by author, Natalie P. Johnson.