The Advocates Dilemma (The Advocate Series Book 4)
Lewin, P. State courts have been key players, with the courts of Vermont 74 See Baker v. Horton, P. Connecticut, 77 See Kerrigan v. Health, A. Brien, N. Deane, A. Robles, N. King County, P.
The Advocate's Dilemma (The Advocate #4) by Teresa Burrell
State legislatures, which generally worked against marriage equality early on, have more recently taken a leading role in relationship-recognition reform, with lawmakers in Vermont, 80 Vt. New Hampshire, 81 N. Code Ann. The Council of the District of Columbia also passed a marriage-equality law. At the time this Article went to print, state lawmakers in Washington and Maryland had passed marriage-equality legislation, but opponents were attempting to block the laws through voter initiatives.
See Aaron. Senate , Wash. Post, Feb.
Times , Feb. While some scholars have questioned the positive impact of marriage-equality litigation, 85 See Gerald N. Klarman, Brown and Lawrence and Goodridge , Mich. Acknowledging that court decisions spurred significant backlash and led to important setbacks, these scholars nonetheless contend that litigation contributed in important ways to LGBT rights in a number of states across multiple domains.
He balances the regressive policy documented in more pessimistic accounts with progressive laws on relationship recognition adopted by a number of states and Washington, D.
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Keck explicitly connects incremental reform to court-centered strategies, arguing that marriage litigation produced, rather than foreclosed, the very possibilities for nonmarital-relationship-recognition regimes. In this view, litigation threatening marriage equality suddenly cast nonmarital recognition, including domestic-partnership and civil-union regimes, as a moderate, compromise position.
Keck also balances legislative setbacks with legislative victories on a variety of LGBT issues. While the pace of anti-LGBT legislation picked up after key court victories, the pace of pro-LGBT legislation did as well, with many states passing antidiscrimination laws, hate-crime protections, and relationship-recognition statutes.
Public opinion tracks this progressive policy story, with polling data demonstrating increasing support among the general public for marriage equality and civil unions. Board of Education and Its Aftermath , 14 Wm. More recent polling bolsters this claim. Williams, Polls May Sway Prop. Times , May 23, , at AA4. When viewed through the legal mobilization lens, it becomes clear that LGBT rights advocates used litigation to obtain tangible and immediate results for constituents while also seizing on the extrajudicial effects of court-based strategies.
To reap these indirect benefits, advocates pursued litigation at the same time that they deployed a range of other tactics, which worked in conjunction with litigation.
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This is consistent with observations made about cause lawyers more generally. See Scott L. State-by-state legislative advocacy, in the shadow of marriage litigation, produced a variety of relationship-recognition regimes, ranging from designated beneficiaries to domestic partnerships, and civil unions to marriage. Some states that provided relationship rights to same-sex couples gradually expanded on those rights.
For instance, after California enacted a fairly limited domestic-partnership scheme in , 95 Act of Oct. Advocates defended the domestic-partnership law in court even as they litigated the issue of marriage equality.
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Moreover, some states providing the benefits and obligations of marriage under a nonmarital designation eventually provided marriage in name as well. Vermont See Vt. While litigation has produced important progress for the LGBT movement, lawyers for the movement recognize the risks and constraints of litigation and therefore approach courts with caution.
They target states with favorable background conditions—pro-LGBT laws relating to antidiscrimination and parenting, potentially receptive judges and political leaders, and a difficult and lengthy process for amending the state constitution. For instance, lawyers at GLAD brought suit in Massachusetts after careful consideration and based on a number of favorable indicators. Bonauto, Goodridge in Context , 40 Harv. Massachusetts law protected lesbians and gay men from discrimination. Laws ch.
And constitutional initiatives in Massachusetts require a constitutional convention and passage by the legislature, rather than merely signature gathering by citizen groups. In Goodridge v. Department of Public Health , the Massachusetts Supreme Judicial Court held that excluding same-sex couples from marriage violated the state constitution. In a subsequent opinion, the court made clear that only full marriage rights would remedy the constitutional violation. The decision mobilized movement members and altered the discussion in the state political arena.
Political elites suddenly had a state court decision to justify their support for marriage equality, and opponents had to work to contravene a Supreme Judicial Court decision and to alter the meaning of previously announced constitutional rights.
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To avoid a constitutional amendment, LGBT rights advocates worked with sympathetic legislators to outmaneuver opponents and convince moderates to support the cause. Over time, support for marriage equality increased among elites and the general public.
Now, several years after the marriage-equality regime initiated by the state supreme court generated intense controversy and division, marriage appears safe from attack. See Complaint at 22—23, Massachusetts v. Globe , June 13, , at A1. While the Massachusetts litigation presents a promising picture of court-centered change, LGBT rights lawyers have at times adopted a strategy of litigation avoidance based on the background institutional and political conditions. In California, for instance, advocates consistently advised against marriage litigation and instead pursued a legislative and public-education strategy in conjunction with more limited claims in court.
Lawyers were concerned that, even if they could secure a state supreme court decision ordering marriage equality, a mobilized countermovement could reverse that result through the initiative process, which unlike in Massachusetts does not require legislative approval and moves very quickly. While movement lawyers were forced into litigation in California by events outside their control and ultimately prevailed at the California Supreme Court, their warnings proved correct when voters approved Proposition 8 to prohibit marriage for same-sex couples.
As a key part of their cautious state-based litigation strategy, LGBT rights lawyers for many years attempted to keep controversies over relationship recognition away from federal judges. Their approach to federal courts, as compared to their initiation of litigation in select state courts, demonstrates that movement advocates see courts as important social-change agents at the same time that they recognize the risks of court-centered strategies given the position of courts in relation to other governmental actors and the public.
Indeed, movement lawyers are especially wary of approaching the U. Supreme Court with the general question of marriage equality—as the Perry lawyers attempt to do—when conservatives dominate the federal bench, the laws of a majority of states do not allow same-sex couples to marry, and national public opinion is split. Movement advocates are well aware of the risks of a Supreme Court loss. The s witnessed perhaps the most devastating defeat for LGBT rights. In Bowers v. Hardwick , the U. Texas, U. The decision facilitated continued discriminatory treatment of lesbians and gay men.
Lawyers struggled to argue that the U. Constitution prohibited sexual-orientation discrimination while allowing criminal prohibitions on the conduct understood to define the group. Webster, F.
But see Romer v. Evans, U. Consequently, LGBT rights lawyers looked in a more wholesale fashion to state courts and to state law claims. They experienced considerable success, as eight of the eleven states decriminalizing sodomy after Bowers did so through judicial decisions.