UUnniivveerrssiittyy ooff VVeerrmmoonntt UUVVMM SScchhoollaarrWWoorrkkss UVM Honors College Senior Theses Undergraduate Theses 2014 ““DDuuaall TTrraacckk AAddvvooccaaccyy::”” LLeeggaall SSttrraatteeggiieess,, PPoolliittiiccaall SSttrraatteeggiieess aanndd TThheeiirr IInntteerrsseeccttiioonn iinn tthhee MMaarrrriiaaggee EEqquuaalliittyy MMoovveemmeenntt Alexander Wade Jones Follow this and additional works at: https://scholarworks.uvm.edu/hcoltheses RReeccoommmmeennddeedd CCiittaattiioonn Jones, Alexander Wade, "“Dual Track Advocacy:” Legal Strategies, Political Strategies and Their Intersection in the Marriage Equality Movement" (2014). UVM Honors College Senior Theses. 14. https://scholarworks.uvm.edu/hcoltheses/14 This Honors College Thesis is brought to you for free and open access by the Undergraduate Theses at UVM ScholarWorks. It has been accepted for inclusion in UVM Honors College Senior Theses by an authorized administrator of UVM ScholarWorks. For more information, please contact [email protected]. “Dual Track Advocacy:” Legal Strategies, Political Strategies and Their Intersection in the Marriage Equality Movement A thesis offered to the faculty of the College of Arts and Sciences in partial fulfillment of a Bachelors of Arts with an Honors Endorsement By Alexander Wade Jones May 13, 2014 2  Table of Contents I. Introduction…………………………………………………………………………………….4 II. Definitions of Key Terms…..………………………………………………………………….6 A. Legal…………………………………………………………………………………...6 B. Political………………………………………………………………………………...7 C. LGB……………………………………………………………………………………8 III. Methods……………………………………………………………………………………...11 IV. Literature Review…………………………………………………………………………...12 A. Politics and Law in the Marriage Equality Movement………………………………12 B. Backlash……………………………………………………………………………...13 C. Legal Strategy………………………………………………………………………..20 D. Political Strategy……………………………………………………………………..22 V. A Short History of Marriage Equality Litigation…………………………………………….24 A. Overview……………………………………………………………………………..24 B. The First Cases (1970-1985)…..……………………………………………………..24 C. Victory and Defeat in the Shadow of Bowers (1986-2002)………………………….27 D. The Advent of Marriage Equality: the Lawrence and Goodridge Era (2003-2007)…35 E. Victory in Connecticut and Iowa, but Reversal in California (2008-2009)……….....42 F. The Attack on DOMA, Section 3, and the Advent of Marriage Equality in California (2010-June 2013)………………………………………………………………………...45 G. The Windsor and Perry Era: (July 2013-December 2013)…………………………..50 VI. Results and Analysis………………………………………………………………………...54 A. The Unity of Politics and the Law...............................................................................54 3  B. Potential Tensions Between Politics and the Law…………………………………...61 C. The Involvement and Issues of National Organizations……………………………..64 D. Windsor as the Result of a Political-Legal Strategy…………………………………70 E. Plaintiff Selection…………………………………………………………………….72 F. Marshalling Amici Curiae…………………………………………………………….79 G. Backlash……………………………………………………………………………...84 H. Backlash Due to Prematurity: Was Marriage Foisted on the LGB Rights Movement?........................................................................................................................91 I. The End of Backlash?....................................................................................................97 J. The Effect of Losses in Litigation and the Legislature……………………………...100 K. The Viability of Civil Unions………………………………………………………104 L. Legal Strategy……………………………………………………………………….105 VII. Conclusion………………………………………………………………………………...112 VIII. Bibliography……………………………………………………………………………...115 4  I. Introduction The LGB rights movement is one of the great civil rights movements of our time. Whereas the 1950s and 1960s witnessed the struggle to extend full recognition of African- Americans’ citizenship and dignity, the past two decades have witnessed a similar struggle as the nation has moved to accept LGB people1 and recognize their full citizenship. In the LGB rights movement, perhaps the most visible issue for the last twenty years has been marriage equality. The first cases suing for the right to marriage for LGB people were filed in the 1970s, but the issue of marriage for same-sex couples only emerged into public view in the 1990s. Following numerous losses in the first decades of marriage equality litigation, organizations litigating for marriage equality and private advocates for marriage equality finally began winning cases in courts across the nation. This thesis draws on interviews with many of the main attorneys involved in the organizations campaigning for marriage equality over the past two decades, many of whom run such organizations. Using the information from those interviews, this thesis analyzes how the organizations campaigning for marriage equality managed to win in court and protect those victories from interference from other branches of government. To do so, this thesis focuses on the intersection of law and politics in marriage equality litigation, the understanding of organizations working toward marriage equality of that intersection, and the strategies of those organizations that stem from an understanding of that intersection. This thesis analyzes both legal and political strategies, as well as investigating the actual workings of the organizations campaigning for marriage equality. In so doing, this thesis also addresses those organizations’ conception and reaction to the “backlash hypothesis” that dominates scholarly literature of the marriage equality movement.                                                          1 See definitions below. 5  This thesis begins with definitions of key terms to avoid confusion, followed by a discussion of the methods used in this study, followed by a review of the extant literature. Since the law looks backward even as it advances, and since the lawyers interviewed for this study referred to past cases and based their strategy on the cases’ outcomes, a short history of marriage equality litigation follows the literature review. After that short history, the results of the interviews are presented. I conclude that the organizations campaigning for marriage equality have internalized the backlash hypothesis, and thus emphasize the political aspect of marriage equality test cases. I also conclude that such organizations have politicized almost every aspect of their work to both win and protect legal victories, turning such traditionally legal aspects of litigation such as plaintiff selection, amici briefs and even legal arguments into political tools. 6  II. Definitions of Key Terms Many current scholars do not separate the concepts of “legal” and “political,” and instead view them as two parts of the same whole. This is reflected in modern theories of attitudinalism, which argues that legal decisions made by judges are actually political decisions. On the other hand, the theories of historical institutionalism argue that judges make decisions based both on policy preferences and the limits imposed by law and custom.2 Some scholars have even argued that “Constitutional arguments are as much the stuff of politics as the pork barrel and the log roll.…[B]asic constitutional institutions provide normative and procedural frameworks that allow political debate.”3 This essay will deal with “legal” and “political” aspects of marriage equality cases as separate entities, even though this essay will also discuss how every marriage equality case has both legal and political aspects that must be attended to in order for advocates of marriage equality to succeed. In all the interviews conducted for this essay, the participants acknowledged that the prevailing wisdom in the organizations involved in marriage equality litigation is that there are, in fact, these two sides of every marriage case. According to most, this was a hard lesson learned after the first marriage cases. In order to analyze political and legal aspects of marriage equality cases, this essay separates them with the understanding that such a separation is merely a device used for analysis, and not a division that is reflected at all times in campaigns for marriage equality. The following definitions are definitions of key terms used in this essay, and will govern the discussion of legal and political aspects of marriage equality cases. A. Legal                                                          2 Howard Gillman, Mark A. Graber & Keith E. Whittington, American Constitutionalism, Volume I: Structures of Government, (New York: Oxford University Press, 2013), 17. 3 Ibid., xx. 7  For the purposes of this essay, the term “legal” shall refer to any actions that take place in the judicial branch of government, and not in the elected branches of government or in relation to popular referenda. As such, legal strategies are strategies that pertain only to arguments used in courts of law. The legal aspects of the marriage cases discussed in this essay are the aspects of the cases that occurred in courts of law, and not in legislatures or in the general public. Legal arguments and strategies include arguing for heightened versus rational basis scrutiny of a law or using Due Process arguments instead of Equal Protection arguments. There are aspects of the cases discussed in this case that do not neatly fit into definitions of “political” and “legal” without making definitions of those terms so wide as to rob them of meaning. Such aspects include the timing of bringing a lawsuit and amici curiae briefs. The timing of a lawsuit may be influenced by events outside the judicial branch in the public or in legislatures. However, since the action of bringing of a case and its adjudication both occur in courts of law, such decisions will be discussed as legal strategies. Similarly, as I will show, the marshalling of amici curiae has overwhelmingly political overtones. Sometimes briefs filed by amici do not even make legalistic arguments. However, since the briefs are filed with courts of law and are filed as means to the end of influencing a lawsuit, amici briefs shall be discussed in terms of legal strategy as much as possible. B. Political As mentioned above, legal actions occur in the judiciary. Political actions are actions that occur in the elected branches of government and the general public, either in the context of a popular referendum or not. Political aspects of the cases discussed in this essay include grassroots organizing of volunteers to run the organizations that bring lawsuits, public advocacy, lobbying in legislatures, and public education. Although actions taken in the elected branches 8  have legal overtones because they deal with the creation of law and policy, such actions shall be discussed as political strategies, since they occur solely in the elected branches. This essay is not so much focused on the language of the laws enacted by referendum or legislative processes, but on the process that led to that final product of a law. Another difficulty in this definition is the use of amicus curiae briefs, a type of legal form, to make political points. As I will show, the organizations litigating for marriage equality do this quite often. Amici briefs that are written to rebut popular conceptions of LGB people, or to show that large swaths of society already support marriage equality engage in political arguments. Amici briefs that make such arguments do not argue along legal lines, such as advocating for a specific level of judicial scrutiny. Instead, such briefs aim to show or build consensus. Thus, for the purposes of this essay, the term “political” will also refer to attempts to reach consensus and to appeal to non-legal arguments. C. LGB In this essay, the acronym LGB is used to represent all people who self-identify as lesbian, gay or bisexual, and are therefore likely to be either involved in or affected by the lawsuits discussed in this essay. Although far more common acronyms are LGBTQ (Lesbian, Gay, Bisexual, Transgender/Transsexual, and Queer/Questioning) or just LGBT, I have decided to use simply LGB. I made this decision with no intention of lessening other identities in importance. Issues facing transgender and transgender persons are of immense importance, and represent a still-developing and fascinating field of law and policy.4 However, such issues are beyond the scope of this paper. This paper deals only with marriage, and transsexual/transgender marriage is an issue too much in flux and too recently arrived at by the public conscious to be                                                          4 See Anton Marino, “TRANSgressions of Inequality: The Struggle Finding Legal Protections Against Wrongful Employment Termination on the Basis of the Transgender Identity,” Journal of Gender, Social Policy & the Law 21, no. 4 (2013): 865-893; Stevie V. Tran & Elizabeth M. Glazer, “Transgenderless,” Harvard Journal of Law & Gender 35, (2012): 399-423; and Chinyere Ezie, “Deconstructing the Body: Transgender and Intersex Identities and Sex Discrimination - The Need for Strict Scrutiny,” Columbia Journal of Gender & Law 20 (2011): 141. 9  addressed in adequate depth in this study. As such, this essay shall use LGB as its acronym.5 This essay shall also use the term “marriage equality” except when interviewees mention marriage equality by other terms. “Marriage equality” is now the preferred term for discussing the goal of the movement, as opposed to “same-sex marriage” or “gay marriage.” The transition from those two phrases to “marriage equality” was a slow process. As I will show, some attorneys campaigning for marriage equality in the 1990s opposed the use of “same-sex” or “gay marriage” as descriptors of their goals. To those attorneys, such terms were too narrow—they saw themselves as fighting for marriage for everyone, regardless of sexual orientation, gender identification, or any other characteristic. However, the terms “same-sex marriage” and “gay marriage” were easier for the public to use, and so were used at first. Now, with the nation more familiar and comfortable with marriage equality, and with the fine-tuning of the political outreach of organizations working toward marriage equality, the term “marriage equality” has gained popularity. Throughout this essay I refer to the LGB community and the LGB rights movement, more colloquially referred to as the gay rights movement. The LGB community exists more in theory than in reality, and, as Aloni explains in words that apply as much to his as this essay, This does not mean that a monolithic community of LGB individuals exists in any meaningful way. At times, the multitude of interests within this community converge; at other times, they diverge significantly. Acknowledging this to be the case, I nevertheless refer to a “community” throughout this Article, and I attempt to be clear about those times when interests within the community are most likely to diverge, especially vis-à-vis marriage.6                                                          5 The use of LGB is not unusual, and Erez Aloni gave a wonderful explanation for its use, which also works in this context: “I use the term LGB to describe members who self-identify as lesbian, gay, or bisexual. In doing so, I do not intend to erase or obscure other identities.…This article does not refer specifically to transgender marriage because this raises questions concerning a state’s definition of male and female. For some transgender individuals, the option to marry already exists, even in states that do not recognize same-sex marriage. This is not to say that transgender people do not have an interest in same-sex marriage, just that the rules for determining the sex of a person are different from state to state and involve different sets of legal rules.” (Erez Aloni, “Incrementalism, Civil Unions, and the Possibility of Predicting Legal Recognition of Same-Sex Marriage,” Duke Journal of Gender Law & Policy 18: 106n1). 6 Ibid.