Multidimensional advocacy as applied: marriage equality and reproductive rights.

Author:Goldberg, Suzanne B.
Position:Marriage Equality and Reproductive Rights: Lessons Learned and the Road Ahead
 
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Talking about marriage equality and reproductive rights advocacy (1) together presents an interesting, and sometimes puzzling, assortment of challenges and opportunities. Both involve efforts to secure legal protections and social recognition that are fundamentally important to those who need them yet also deeply provocative to their opponents. For both, too, advocacy takes place on a shifting terrain shaped by competing views of sexuality, autonomy, equality, personhood, and more. Yet the two advocacy efforts have experienced very different receptions over time. Just over two decades ago, the Supreme Court expressly affirmed that women have a constitutional right to seek an abortion and rejected an effort by abortion adversaries to have the Court overturn Roe v. Wade. (2) Marriage equality, by contrast, seemed almost like a pipe dream. Although the Hawaii Supreme Court's recognition of same-sex couples' marriage rights claim the following year (3) seemed to hold promise, the federal government and many states rushed to pass "defense of marriage" acts (DOMAs) to short-circuit similar claims throughout the country. (4)

During the 1980s, the pattern was similar, with the prospects for reproductive rights seeming far more secure than the hopes for marriage equality. In the same term that the Supreme Court invalidated another Pennsylvania law restricting access to abortion, (5) the Court also rejected a gay man's constitutional claim against Georgia's sodomy law, observing that it was "at best, facetious." (6) Popular views about homosexuality generally, and marriage rights for same-sex couples in particular, were also overwhelmingly negative, while roughly half of Americans supported a woman's right to choose an abortion. (7)

More recently, though, the trajectories appear to have crossed. Public opinion and legal developments have moved sharply in favor of marriage equality. (8) By contrast, during the same period, both case law and legislation have increasingly rejected advocates' claims and circumscribed access to abortion. (9)

This Essay aims to understand how advocacy strategies--particularly advocacy that is outside the courtroom but linked to litigation on a related issue--have contributed to these shifts in trajectories and helped to shape the environment in which courts are deciding cases. (10) In particular, my focus is on the role of lawyers in contributing to and guiding that environment-shaping process.

I examine these efforts through the lens of what I call multidimensional advocacy. (11) This framework, which is at once theoretical and strategic, calls attention to the multiple and often mutually-reinforcing strategies that can be implemented to change perceptions, conversations, and ultimately, outcomes related to particular laws or policies. (12) It calls attention, too, to the central role that public perceptions can play in the likelihood of litigation success: when the end goal of a social change lawsuit seems plausible in the surrounding society, the legal claims are likely to be better received by judges. (13)

The multidimensional advocacy framework thus highlights both the responsibility of advocates to generate that social and judicial receptivity as well as the practices--including community engagement and media outreach, among others--advocates use for that purpose. With respect to responsibility, one might even say that it is advocacy malpractice not to work in a multidimensional fashion on most issues. In both public and private law settings, the best lawyers routinely advocate on many fronts, understanding that engaging with perceptions of their claims and their clients can be critical to success. As George Washington put the point, in an admittedly different context, "the truth is, the people must feel before they will see." (14) When advocates engender feelings receptive to their claims outside of court, they enhance the likelihood that decisionmakers will similarly feel--and see--their way to the desired outcome.

The Essay's first part elaborates the multidimensional advocacy framework, particularly in the context of advocacy related to litigation aimed at changing extant laws and policies. (15) Part II turns to marriage equality and reproductive rights advocacy and considers some of the similarities and differences in doctrine and popular reactions that shape the landscape in which advocates do their work. Part III uses the multidimensional advocacy framework to identify several strategies deployed in connection with litigation that have helped shift perceptions in each area. Part IV then discusses an additional strategy that generated support for litigation and other efforts amidst great hostility in the early days of marriage equality advocacy and considers whether it might be adjusted to serve the aims of reproductive rights advocates today. Part V concludes.

One caveat is essential before going further. The literatures on both abortion and marriage are rich and extensive, (16) and they engage many important issues that cannot be addressed in an essay of this scope. My ambition, instead, is to add to the discussion in the spirit of the Marriage Equality and Reproductive Rights Symposium of Columbia Law School's Center for Gender & Sexuality Law, where the idea for this Essay was first conceived during a strategy meeting of advocates. There, lawyers and others who work on lesbian, gay, bisexual, and transgender (LGBT) and reproductive rights issues debated the reasons why marriage equality and reproductive rights access--particularly including abortion--seemed to be heading in such different directions, with successes on the marriage front piling up at the same time as reproductive rights advocates faced an onslaught of hostile courts and legislatures and a group of advocates against them that seemed far more effective than the adversaries of marriage equality. (17)

By pairing the issues and considering advocacy strategies of both groups as multidimensional efforts to change national and local perceptions of these issues, I hope to illuminate some additional factors that either constrain or enable the doctrinal, conceptual, and theoretical shifts that are the legal literature's primary focus.

One other preliminary point--the law and public opinion discussed here are in the midst of serious contestation, and I do not intend to characterize the trajectories just described as either fixed or absolute. Indeed, the Supreme Court's broad exemption of faith-based, closely held corporations from the Affordable Care Act's contraception provisions in Burwell v. Hobby Lobby, (18) as well as the rapidly changing landscape on marriage, (19) is a signal reminder that the road ahead for both marriage equality and reproductive rights is hardly predictable. Instead, the Essay's aim is to learn from advocacy strategies that have been engaged thus far and to consider how they might be used to anticipate and respond to some of the challenges ahead.

  1. The Multidimensional Advocacy Framework

    The point of a multidimensional advocacy framework is to focus attention on the array of strategies available to advocates seeking to create change, the possible interaction among those strategies, and the choices advocates make at different points in time. (20) Critical to this analysis is the understanding that when litigation is pursued, advocates must think strategically not only about the litigation itself but also about how engagement with the surrounding environment might facilitate success or, at least, minimize the consequences of a loss. This commitment to a capacious view of advocacy surrounding litigation is particularly important for those seeking to address a traditionally sticky problem, such as restrictions on marriage for same-sex couples or reproductive rights that implicate abortion. (21)

    Thus, relative to political opportunity theory, which suggests that social movements are shaped by the political opportunities available to them at a given time, (22) one might say that multidimensional advocacy's focus is on identifying and then changing those opportunities as needed to achieve a particular goal.

    There is nothing necessarily law-focused about the framework; any type of change effort can be examined through this lens. Still, for purposes of this Essay, and its focus on marriage and abortion-related advocacy, I will develop the framework primarily as applied to efforts to invalidate or otherwise oppose statutes and constitutional amendments. (23) Even in this law-focused context, though, multidimensional advocacy is not the exclusive province of lawyers. While legal training is required for litigation, (24) it is hardly essential for developing expertise in communications, politics, organizing, arts and culture, corporate relations, event planning, and more, all of which are arguably necessary for fully multidimensional advocacy. (25) At the same time, because litigation has been so important to securing marriage equality and reproductive rights, strategies aimed at shaping the environment in which cases are litigated have been, and are likely to continue to be, central to work on both issues, with lawyers continuing to play a significant role in their development and implementation.

    1. Basic Considerations

      Indeed, notwithstanding the substantial scholarship devoted to questioning the value of litigation as a social change strategy, (26) impact litigators have long advocated outside as well as within the courtroom, informed by the conviction that achieving litigation success involves not only developing legal theories, but also learning and responding to the sociopolitical landscape in which the case will be decided. (27) Consequently, public education and community outreach tend to be standard practices, either by legal organizations themselves and/or in collaboration with other movement organizations. (28)

      In Iowa, for example, before filing suit in 2005 seeking marriage rights...

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