Douglas Nejaime, the Legal Mobilization Dilemma

• Publication year: 2012

THE LEGAL MOBILIZATION DILEMMA

Douglas NeJaime*

INTRODUCTION 664

1. LEGAL MOBILIZATION AND MARRIAGE EQUALITY 677

   1. State-Based Legal Mobilization 678

   2. Federal Legal Mobilization 683

2. TACTICAL CONFLICT AND LITIGATION 687

   1. The Power of Litigation 688

   2. Lawsuits Challenging Coordinated Movement Strategy 694

   3. The Perry Litigation 698

3. LEGAL MOBILIZATION’S CHANNELING EFFECTS ON TACTICAL CONFLICT 701

   1. Marriage-Equality Mobilization 704

      1. Mobilizing Around the Legal Right to Marry 704

      2. Formally Organizing Around the Legal Right to Marry 709

      3. Litigating the Right to Marry 711

   2. Mainstreaming Marriage Equality 714

      1. Attracting Elites 714

      2. Influencing the Political Opportunity Structure 718

         1. State Government Officials 722

         2. Federal Judges 726

CONCLUSION—MANAGING THE DILEMMA 733

* Associate Professor of Law, Loyola Law School, Los Angeles (Loyola Marymount University). For their thoughtful comments, I thank Steve Boutcher, David Fontana, Kathleen Hull, Lynn Jones, Amy Kapczynski, Justin Levitt, Anna-Maria Marshall, Susan Olson, Jenny Pizer, Jennifer Rothman, Reva Siegel, Michael Waterstone, and Emily Zackin. I also benefited from the feedback of participants at Emory’s 2011 Thrower Symposium and the 2011 Law & Society Conference. Tom Boone at Loyola’s William M. Rains Law Library provided invaluable research support. Christine Ro, Liz Treckler, and Maryam Azizi supplied excellent research assistance. I owe special thanks to the editors of the Emory Law Journal, especially Andrew McKinley and Daniel Reach, for their careful work on this Article.

INTRODUCTION

Perry v. Brown, the federal lawsuit challenging Proposition 8—the California state constitutional amendment prohibiting marriage for same-sex couples—was filed in 2009.1 At that time, it presented sweeping federal constitutional claims for marriage equality and sought to ultimately put those claims before the U.S. Supreme Court.2 The suit defied the strategic vision of lawyers at the leading lesbian, gay, bisexual, and transgender (LGBT) legal organizations—Lambda Legal, the American Civil Liberties Union (ACLU),

the National Center for Lesbian Rights (NCLR), and Gay & Lesbian Advocates & Defenders (GLAD). Those lawyers had attempted to keep the federal courts away from Proposition 8 and similar state laws.3 Yet a new organization, the American Foundation for Equal Rights (AFER), filed the

Perry suit. AFER’s effort boasted considerable support from elites and operated within an increasingly favorable legal and political environment.4

AFER’s well-resourced challenge to conventional movement wisdom materialized in large part because LGBT movement advocates had achieved so much success using a legal mobilization strategy—one that deployed litigation in conjunction with a range of other tactics and exploited the mobilizing and

political potential of rights claims.5 In this Article, I argue that understanding

the Perry litigation through the lens of social movements exposes a tension in legal mobilization that movement advocates must confront and that scholarly

1. Complaint for Declaratory, Injunctive, or Other Relief, Perry v. Schwarzenegger, 704 F. Supp. 2d 921

   (N.D. Cal. 2010) (No. C 09-2292 VRW). Filed in district court as Perry v. Schwarzenegger, the case name changed to Perry v. Brown on appeal to the Ninth Circuit.

2. Before this Article went to print, the Ninth Circuit panel decided the case on especially narrow

   grounds, resisting the plaintiffs’ invitation to consider whether same-sex couples enjoy a fundamental right to marry and whether sexual-orientation-based classifications merit heightened scrutiny for equal protection purposes. See Perry v. Brown, 671 F.3d 1052, 1076 (9th Cir. 2012). Instead, the court held that, because California maintains a separate domestic-partnership system that provides the state law rights and benefits of marriage to same-sex couples and because California voters eliminated same-sex couples’ existing right to marry, Proposition 8 fails even rational-basis review for equal protection purposes. See id. at 1086–90.

3. ACLU ET AL., WHY THE BALLOT BOX AND NOT THE COURTS SHOULD BE THE NEXT STEP ON

   MARRIAGE IN CALIFORNIA (2009), available at http://www.aclu.org/pdfs/lgbt/ballot_box_20090527.pdf.

4. See Jesse McKinley, Same-Sex Vote Unlikely in California, N.Y. TIMES, June 13, 2011, at A15. Throughout this Article, I use the term “elites” to refer generally to nonmovement actors from political, legal, and cultural arenas, with resources and/or influence.

5. For an elaboration of legal mobilization, see MICHAEL W. MCCANN, RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION 5–12 (1994); Michael McCann, Law and Social

   Movements, in THE BLACKWELL COMPANION TO LAW AND SOCIETY 506, 508 (Austin Sarat ed., 2004); and Frances Kahn Zemans, Legal Mobilization: The Neglected Role of the Law in the Political System, 77 AM. POL. SCI. REV. 690 (1983).

   accounts have failed to fully capture: The same strategy that yields movement progress may channel tactical conflict into powerful litigation that threatens and redirects that strategy. This is what I term the legal mobilization dilemma. Successful legal mobilization facilitates threats to movement strategy coming not from the state or the countermovement but from forces inside or allied with

   the movement itself.6 In identifying the origins and implications of the legal

   mobilization dilemma, this Article analyzes an unexpected cost of highly successful litigation-based strategies.

   
   

   As scholars have long acknowledged, litigation represents an attractive option for groups disadvantaged in the political process.7 The access provided by courts distinguishes litigation from other institutional tactics. Courts generally have an obligation to hear and consider a group’s grievance, even when lawmakers do not provide a forum. And because courts enjoy some

   degree of independence, they may advance the group’s cause even when political actors and the general public remain relatively hostile. Ultimately, a single judicial decision, positive or negative, may exert significant influence on the process of social change.

   
   

   The openness and accessibility that make courts so appealing to movement activists also yield risks of movement conflict and fragmentation.8 While litigation facilitates access to power for marginalized groups, it also allows individuals to speak on behalf of a group and bind other group members. Litigation contrasts with more group-oriented models of legislation and direct

   democracy, permitting individualized action less feasible in other institutional arenas.9 Unlike the legislative process, where the legislative body (both formally and informally) recognizes and authorizes certain group representatives to influence debate, or the initiative process, where a ballot

   
   

6. I am not documenting the radical flank effect that other scholars have observed. See, e.g., Catherine Albiston, Response, The Dark Side of Litigation as a Social Movement Strategy, 96 IOWA L. REV. BULL. 61, 70–71 (2011), http://www.uiowa.edu/~ilr/bulletin/ILRB_96_Albiston.pdf (“Social-movement scholars have identified a radical flank effect in which the demands and actions of the radical actors within a social movement cause the state to grant the more moderate demands made by other actors because those demands seem reasonable in comparison.”). Instead, the movement actors I analyze share a goal (marriage equality) and generally view the specific tactic (litigation) favorably, but they disagree on the strategic deployment and timing of that tactic.

7. See, e.g., JOEL F. HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM: A THEORY OF LAW

   REFORM AND SOCIAL CHANGE 22 (1978).

8. At the same time, the fragmentation facilitated by litigation may diversify a movement by giving a voice and access to those outside the inner circle of movement leadership.

9. See William B. Rubenstein, Divided We Litigate: Addressing Disputes Among Group Members and

   Lawyers in Civil Rights Campaigns, 106 YALE L.J. 1623, 1623–27 (1997).

   initiative must attract signatures and funding, litigation is a relatively inexpensive way for an individual to access an official decision-making process with no requirement that the claimant truly represent the group.10 While legislative lobbying and initiative campaigns require some level of

   movement consensus and coordination, litigation can be launched by almost any movement member at almost any time. And yet the mere act of filing suit may attract publicity and media attention for an organization or individual otherwise not considered a significant movement actor.11 More importantly, a lawsuit may result in a judicial decision that affects other movement members and restricts the movement going forward.

   
   

   As a general matter, litigation poses a threat when tactical disagreement arises; any single movement member can initiate a lawsuit that threatens to bind the entire movement.12 But sustained and successful legal mobilization may make litigation an especially appealing and powerful option through

   which to contest movement strategy. By attracting constituent and elite support for court-centered tactics and by making litigation more viable as both a political and doctrinal matter, successful legal mobilization may channel tactical conflict into potent lawsuits that have the capacity to significantly redirect the movement’s strategic trajectory.

   
   

   In identifying and analyzing the legal mobilization dilemma, this Article brings together three bodies of scholarship. The first examines the role of cause lawyers representing social movements, specifically exploring the relationship between litigation and intragroup difference. Derrick Bell’s seminal article, Serving Two Masters, analyzed the ethical issues raised by NAACP Legal Defense and Educational Fund (LDF) lawyers’ work on school desegregation

   litigation.13 In acknowledging the influence of class interests and donor

   pressure on lawyer goals and tactics, Bell exposed the tensions inherent in cause lawyers’ representation of large, diverse groups.14 He specifically encouraged...