Winning through losing

Iowa Law Review

Volumn 96, Issue 3, 2011, Pages 941-1012

  Nejaime, Douglas ^a  

^a LOYOLA MARYMOUNT UNIVERSITY   (United States)

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EID: 79953308899     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (384)

1. JOEL F. HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM: A THEORY OF LAW REFORM AND SOCIAL CHANGE 19 (1978)
2. see, e.g., GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 421 (2d ed. 2008)
3. Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 VA. L. REV. 7, 10-11 (1994) [hereinafter Klarman, Racial Change];
4. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1,6, 19-23 (1996) [hereinafter Klarman, Rethinking the Revolutions].
5. See, e.g., HANDLER, supra note 1, at 217-28
6. McCann M.W. How Does Law Matter for Social Movements?, in How Does Law Matter? 76 85 (Bryant G. Garth & Austin Sarat eds.,1998)
7. Cause lawyers use court-based strategies for activist purposes, or, as Austin Sarat and Stuart Scheingold explain, to change "some aspect of the social, economic, and political status quo." Austin Sarat & Stuart Scheingold, Cause Lawyering and the Reproduction of Professional Authority: An Introduction, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES 3-4 (Austin Sarat & Stuart Scheingold eds., 1998);
8. see also Anne Bloom, Practice Style and Successful Legal Mobilization, LAW & CONTEMP. PROBS., Spring 2008, at 1, 5 ("Cause lawyers are activist lawyers who use their legal skills to advance a cause.");
9. Joshua C. Wilson, It Takes All Kinds: Observations from an Event-Centered Approach to Cause Lawyering, 50 STUD. LAW, POL., & SocV 169, 170 (2009) ("At its core cause lawyering is distinguished from traditional lawyering in that it is done in the service of a political or social cause that seeks to rearrange existing state or social power relations.").
10. In this context, elites are non-movement actors with resources, cultural influence, and/or political power. See Lynn Mather, Theorizing About Trial Courts: Lawyers, Policymaking, and Tobacco Litigation, 23 LAW & Soc. INQUIRY 897, 935 (1998)
11. Erich W. Steinman, Legitimizing American Indian Sovereignty: Mobilizing the Constitutive Power of Law Through Institutional Entrepreneurship, 39 LAW & Soc'Y REV. 759, 771 (2005). This captures what social movement scholars often refer to as "political elites" or "elite allies," but does not include movement lawyers or movement actors embedded in die state apparatus, both of whom may be described as elites in some contexts
12. See LEE ANN BANASZAK, THE WOMEN'S MOVEMENT INSIDE AND OUTSIDE THE STATE 3 (2010) (distinguishing outsider allies from movement insiders)
13. Lynn C.Jones, Exploring the Sources of Cause and Career Correspondence Among Cause Lawyers, in THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE 203, 205 (Austin Sarat & Stuart Scheingold eds., 2005) ("[Extensions of social movement theory would view lawyers as elites who co-opt movement strategies and goals in line with their own interests." (citation omitted))
14. Wayne A. Santoro & Gail M. McGuire, Social Movement Insiders: The Impact of Institutional Activists on Affirmative Action and Comparable Worth Policies, 44 SOC PROBS. 503, 503-04 (1997) (labeling political elites affiliated widi a social movement "institutional activists").
15. See, e.g., MICHAEL W. MCCANN, RIGHTS AT WORK 144-45 (J994)
16. Scott L. Cummings, Hemmed In: Legal Mobilization in the Los Angeles Anti-sweatshop Movement, 30 BERKELEY J. EMP. & LAB. L. 1, 7 (2009).
17. See MCCANN, supra note 5, at 5-12;
18. see also Frances Kahn Zemans, Legal Mobilization: The Neglected Role of the Law in the Political System, 77 AM. POL. SCI. REV. 690, 700 (1983) (arguing Uiat greater access to, and use of, diversified legal forums increases political participation).
19. See, e.g., Richard Abel, Speaking Law to Power: Occasions for Cause Lawyering, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES, supra note 3, at 69, 95 ("Cause lawyers seek to ⋯ locate the controversy in its broader social and political context.");
20. Thomas M. Keck, Beyond Backlash: Assessing the Impact offudicial Decisions on LGBT Rights, 43 LAW & SOC'Y REV. 151,156-57 (2009).
21. See Michael McCann, Law and Social Movements, in THE BLACKWELL COMPANION TO LAW AND SOCIETY 506, 508 (Austin Sarat ed., 2004) [hereinafter McCann, Law and Social Movements] ("[L]aw provides bodi normative principles and strategic resources for the conduct of social struggle.")
22. see also Michael McCann, Causal Versus Constitutive Explanations (or, on the Difficulty of Being So Positive⋯), 21 LAW & SOC. INQUIRY 457, 463 (1996) [hereinafter McCann, Causal Versus Constitutive Explanations] (defining "constitutive" activity as activity tiiat forms meaning in die public mind).
23. In our analysis of the California marriage-equality campaign, Scott Cummings and I used the term "multidimensional advocacy" to describe "advocacy across different domains
24. (courts, legislatures, media), spanning different levels (federal, state, local), and deploying different tactics (litigation, legislative advocacy, public education)." Scott L. Cummings & Douglas Nejaime, Lawyering for Marriage Equality, 57 UCLAL. REV. 1235, 1242 (2010).
25. See Lani Guinier, The Supreme Court, 2007 Term-Foreword: Demosprudence Through Dissent, 122 HARV. L. REV. 4 (2008)
26. Robert Post & Reva Siegel, Essay, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373 (2007)
27. Gerald Torres, Legal Change, 55 CLEV. ST. L. REV. 135, 139 (2007)
28. discussion infra Part III.B.
29. See ROSENBERG, supra note 1, at 42 2.
30. See, e.g., HANDLER, supra note 1, at 218; McCANN, supra note 5, at 58; STUART A. SCHEINGOLD, THE POLITICS OF RIGHTS 147 (1974); Keck, supra note 7, at 158; McCann, supra note 2, at 84
31. A handful of scholars approach losing litigation on its own terms, and I discuss their work to the extent it informs my account of litigation loss. See JULES LOBEL, SUCCESS WITHOUT VICTORY: LOST LEGAL BATTLES AND THE LONG ROAD TO JUSTICE IN AMERICA (2003); Steven A. Boutcher, Mobilizing in the Shadow of the Law: Lesbian and Gay Rights in the Aftermath o/"Bowers v. Hardwick, 31 RES. SOC. MOVEMENTS, CONFLICT & CHANGE (forthcoming 2011) [hereinafter Boutcher, Mobilizing in the Shadow of the Law]
32. A handful of scholars approach losing litigation on its own terms, and I discuss their work to the extent it informs my account of litigation loss. See JULES LOBEL, SUCCESS WITHOUT VICTORY: LOST LEGAL BATTLES AND THE LONG ROAD TO JUSTICE IN AMERICA (2003)
33. Steven A. Boutcher, Mobilizing in the Shadow of the Law: Lesbian and Gay Rights in the Aftermath o/"Bowers v. Hardwick, 31 RES. SOC. MOVEMENTS, CONFLICT & CHANGE (forthcoming 2011) [hereinafter Boutcher, Mobilizing in the Shadow of the Law]
34. Jules Lobel, Courts As Forums for Protest, 52 UCLA L. REV. 477, 490 (2004) [hereinafter Lobel, Courts As Forums]
35. Jules Lobel, Losers, Fools cs̊ Prophets: Justice As Struggle, 80 CORNELL L. REV. 1331, 1343 (1995) [hereinafter Lobel, Justice As Struggle]
36. Susan M. Olson, The Political Evolution of Interest Group Litigation, in GOVERNING THROUGH COURTS 225, 227 (Richard AL. Gambitta, Marlynn L. May & James C. Foster eds., 1981)
37. Austin Sarat, Between (the Presence of) Violence and (the Possibility of) Justice: Lawyering Against Capital Punishment, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES
38. supra note 3, at 317, 323
39. Steven A. Boutcher, Making Lemonade: Turning Adverse Decisions into Opportunities for Mobilization, AMICI (Am. Soc. Ass'n, Wash., D.C.), Fall 2005, at 8 [hereinafter Boutcher, Making Lemonade].
40. See Cummings & NeJaime, supra note 9, at 1242.
41. I use an interpretive methodology that understands law as constitutive of social relations, rather than as a distinct and exogenous determinant. See McCann, Causal Versus Constitutive Explanations, supra note 8, at 460-63. To understand social movement actors' motivations, possibilities, and constraints, I look to primary sources, such as movement literature and advocates' statements. Although this approach prevents me from making generalizable causal claims, it allows me to analyze how failed rights-claiming strategies operate in actual social movement contexts and to thereby suggest potential functions for litigation loss.
42. See McCANN, supra note 5, at 3 (exploring "the significance of legal norms, tactics, and institutional processes in the campaign for gender-based pay equity");
43. ROSENBERG, supra note 1, at 2 ("[Understanding to what extent, and under what conditions, courts can produce political and social change is of key importance.")
44. See discussion infra Part III.B.
45. ig. Since Rosenberg has offered the most comprehensive account of this view and has situated his work explicidy in response to legal mobilization and cause lawyering scholarship- upon which I rely tiiroughout tiiis Article-I focus primarily on his account.
46. In assessing whether courts produce significant social reform, Rosenberg explains that "[a]t the core of the debate lies those specific social reforms that affect large groups of people such as blacks, or workers, or women, or partisans of a particular political persuasion; in other words, policy change with nationwide impact" ROSENBERG
47. supra note 1, at 4.
48. See id. at 11; see also William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. PA. L. REV. 419, 500 (2001) ("[Abolitionists' legal] arguments were generally unsuccessful in court, because cautious judges either disagreed with them as a matter of law or morality or felt they had insufficient political cover for accepting them.").
49. See ROSENBERG, supra note 1, at 11.
50. See id.
51. See id. at 13-15.
52. See id.
53. see also William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062, 2067 (2002) ("Judges do not have the resources to undertake initiatives requiring administrative capacity, nor do they have the political legitimacy to engage in much activism not otherwise acceptable to the political system.")
54. See ROSENBERG, supra note i, at 15-21.
55. See id. at 16
56. see also Eskridge, supra note 21, at 500-01 ("If public culture is committed to a regime whereby the minority's trait is generally considered malign and the proper basis for exclusions, the Supreme Court will be very reluctant to strike down any significant state discrimination in the short term, because the Court would fear that such an order would not be enforceable and would fear political retaliation from Congress." (footnote omitted)).
57. 347 U.S. 483 (1954).
58. See ROSENBERG, supra note 1, at 40. This is likely because the Supreme Court's decision in Brown "is usually viewed as the most famous instance of judicial activism-and more to the point, of effective judicial activism-in the modern history of the Supreme Court." See Schuck.
59. supra note 17, at 1773
60. See ROSENBERG, supra note 1, at 42-57.
61. See id. at 42-46,49-54
62. see also Klarman, Rethinking the Revolutions
63. supra note 1, at 21.
64. Michael J. Klarman, How Brown Changed Race Relations: The Backlash Thesis, 81 J. AM. HIST. 81,84(1994).
65. ROSENBERG, supra note 1, at 71.
66. See id. at 156.
67. See id. at 150; Klarman
68. supra note 32, at 88.
69. ("[T]he pervasive assumption that Brown played a vitally significant inspirational function is troubling for several reasons.")
70. See ROSENBERG, supra note 1, at 132; Klarman, supra note 32, at 88 ("[I]t is not clear that in 1954 a Supreme Court decision was needed to legitimize civil rights demands in die eyes of blacks.").
71. See ROSENBERG, supra note l, at 117, 131. But see Nathaniel Persily, Introduction to PUBUC OPINION AND CONSTITUTIONAL CONTROVERSY 3,10-12 (Nathaniel Persily, Jack Citrin & Patrick J. Egan eds., 2008) (explaining diat while in most instances court decisions do not produce an observable effect on public opinion, some court decisions, including Brown v. Board of Education, do lead to measurable shifts).
72. Klarman, supra note 32, at 90 ("Having Brown on the books did not significantly improve the prospects for success in die political arena, as evidenced by die toodiless civil rights legislation enacted by Congress in 1957 and i960 and by die Kennedy administration's abysmal pre-Birmingham civil rights record.")
73. See ROSENBERG, supra note 1, at 121
74. Although Klarman contends uiat civil-rights advancements would have occurred eventually, regardless of Brown and its violent aftermadi, he provides a counterintuitive link between Brown and federal civil-rights legislation by arguing that the violent reaction to Brown in die South ultimately mobilized northern white support for federal action. See Klarman, Racial Change, supra note 1, at 10; see also Klarman, supra note 32, at 116.
75. ROSENBERG, supra note 1, at 156. In his more recent case study-die LGBT-rights movement's marriage-equality litigation-Rosenberg argues not only diat die litigation failed to yield many direct benefits, but also diat it did not indirecdy produce changes in press coverage, shifts in public opinion, or increased political mobilization. See id. at 355-416.
76. See id. at 423 ("[SJtrategic choices have costs, and a strategy diat produces litde or no change and induces backlash drains resources diat could be more effectively employed in odier strategies.").
77. See, e.g., id. at 12, 302.
78. See, eg Torres, supra note 10, at 136 ("[E]xcessive belief in the efficacy of litigation leads to a misallocation of resources by social change activists.").
79. See ROSENBERG, supra note 1, at 147-48.
80. See id. at 131-42.
81. See id. at 16, 21,417.
82. See Michael J. Klarman, Brown and Lawrence (and Goodridge,), 104 MICH. L. REV. 431, 473 (2005) (arguing that court rulings cause backlash because "they alter the order in which social change would otherwise have occurred"); see also Eskridge, supra note 21, at 519 ("The most serious criticism of die Court would be diat it has meddled so much in die political process as to have 'corrupted' it.").
83. See Klarman, Racial Change, supra note 1, at 10-11; see also MICHAEL J. KLARMAN, UNFINISHED BUSINESS: RACIAL EQUALITY IN AMERICAN HISTORY 153,161 (2007).
84. See ROSENBERG, supra note 1, at 81; see also Eskridge, supra note 21, at 471 ("Between 1955-1961, southern states adopted almost 200 statutes defying or seeking to evade Brown's mandate.").
85. See ROSENBERG, supra note 1, at 91.
86. Applying their analysis in die marriage-equality context, bodi Rosenberg and Klarman argue diat litigation in support of same-sex couples' right to marry has produced significant backlash diat has undercut die movement for marriage equality. See id. at 361; Klarman, supra note 47, at 482; Gerald N. Rosenberg, Saul Alimky and the Litigation Campaign To Win the Right to Same-Sex Marriage, 42 J. MARSHALL L. REV. 643 (2009). Thomas Keck rebuts diis claim, arguing diat judicial decisions suppordng marriage equality have produced important expansions of rights for lesbians and gay men in a variety of substanUve domains, despite some backlash. See
87. Keck, supra note 7, at 152; see also Cummings & Nejaime, supra note 9, at 1325-26; Dara E. Purvis, Evaluating Legal Activism: A Response to Rosenberg, 17 BUFF. J. GENDER L. & Soc. POL'Y 1 (2009). Klarman recently modified his conclusions regarding the drive for marriage equality, explaining: "I still believe Goodridge caused a short-term backlash. But I now think that it very likely contributed, in the mid-term, to a dramatic acceleration in the move to gay marriage." Michael Klarman, Marriage Equality: Are Lawsuits the Best Way T, HARV. L. BULL., Summer 2009, at 9. While he observes "a ferocious backlash" in response to Goodridge, Klarman ultimately concludes that "[i]n the long term,⋯ die effect of landmark court decisions on issues of social reform is more complicated." Michael Klarman, The Court of Public Opinion; Growing Numbers of Americans Support Same-Sex Marriage. Will That Sway the Supreme Court?, LJV TIMES, Aug. 15, 2010, at A31. Klarman's more recent position on marriage-equality litigation seems, in some ways, consistent with his assessment of Brown, which is more nuanced than Rosenberg's. See supra note 39 and accompanying text.
88. For instance, legal mobilization scholars analyzing LGBT rights argue that litigation has, in fact, direcdy produced important changes and yielded significant (often self-enforcing) rights. See Keck, supra note 7, at 157; see also DANIEL R. PlNELLO, AMERICA'S STRUGGLE FOR SAME-SEX MARRIAGE 193 (2006) ("These findings diminish die perception that courts are hollow hopes for significant social reform. Widi nearly all odier state and national policy makers at odds widi its goal, die Massachusetts Supreme Judicial Court nonetheless achieved singular success in expanding die ambit of who receives the benefits of getting married in America, in inspiring political elites elsewhere in die country to follow suit, and in mobilizing grass-roots supporters to entrench dieir legal victory politically.").
89. In diis sense, Rosenberg in some ways sets up a false dichotomy by oversimplifying die position of sociolegal scholars who view litigation as a powerful change agent based largely on its indirect effects. As McCann notes, "Rosenberg's skeptical position very much flows widi, radier dian against, prevailing scholarly currents." McCann, supra note 17, at 730.
90. HANDLER, supra note 1, at 19.
91. SCHEINGOLD, supra note 12, at 95.
92. See HANDLER, supra note 1, at 24; SCHEINGOLD, supranote 12, at 95.
93. See Eskridge, supra note 21, at 446 ("Brown emboldened people of color to work together by increasing the likelihood that federal judges would support their campaign."); Lani Guinier, Courting the People: Demosprudence and the Law/Politics Divide, 89 B.U. L. REV. 539, 550 (2009) ("Brown shows judicial actors can inspire or provoke 'mass conversation.'"); McCann, supra note 2, at 86 ("Court decisions ⋯ did not unilaterally cause, by moral inspiration, defiant black grassroots action or, by coercion, federal support for the civil rights agenda. But legal tactics pioneered by the NAACP figured prominently in elevating civil 'rights' claims and intensifying the initial terms of racial struggle in the South."); Michael Murakami, Desegregation, in PUBUC OPINION AND CONSTITUTIONAL CONTROVERSY, supra note 37, at 18,38 ("[T]he power of a case like Brown resides in its ability to mobilize the political class, to inspire public outcry, and to trigger dramatic events."); Schuck, supra note 17, at 1775 ("For the optimist, Brown's real contribution was to put civil rights on the liberal political agenda, force white politicians to respond, raise public consciousness of racial injustice, and inspire civil rights organizations and the black community to take to the streets and the voting booths, thereby producing the long-deferred political gains of the 1960's and 1970's.").
94. See SCHEINGOLD, supra note 12.
95. Id. at 95. This claim relies on the work of Murray Edelman, who articulated the symbolic power of law and politics. See generally MURRAY EDELMAN, THE SYMBOLIC USES OF POLITICS (1964) (exploring how elites use politics symbolically to pacify the mass public and legitimate existing power relations despite vast inequalities). Scheingold applied Edelman's arguments to the legal domain. See SCHEINGOLD, supra note 12, at 205-og (relying on Edelman's work); see also Patricia Ewick & Austin Sarat, Essay, Hidden in Plain View: Murray Edelman in the Law and Society Tradition, 29 LAW & SOC. INQUIRY 439, 444 (2004) ("Scheingold observed that law-particularly through the discourse of rights and legal procedures-furnishes politics with its most potent symbols of legitimacy.").
96. See SCHEINGOLD, supra note 12, at 148; see also Keck, supra note 7, at 158 (explaining how the same-sex marriage victory in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003), led to more participation and action by constituents and heightened the expectations of those constituents); Stuart A. Scheingold, The Politics of Rights Revisited, in GOVERNING THROUGH COURTS, supra note 13, at 193, 204 ("[I]n the short run lawyers and litigation can serve as agents of political mobilization.").
97. McCann, supra note 2, at 84. William Eskridge's influential work on identity-based social movements provides a complementary analysis in legal scholarship on the relationship between law and social movement activism. See Eskridge, supra note 21, at 422 ("[L]egal forums and actors provided the backdrop for many of the dramatic events that helped turn a nascent reform movement into a mass social movement. Once that occurred, changes in the law were inexorable. In short, law helped define the contours of the minority group itself, gave the group both incentives and forums in which to resist their stigmas, and provided dramatic events and campaigns that helped turn a reform movement into a mass social movement.").
98. See HANDLER, supra note 1, at 218.
99. SeeMcCANN, supra note 5, at 144 (noting the use of litigation to pressure an adversary and encourage bargaining).
100. See SCHEINGOLD, supra note 12, at 147 ("Declarations of rights by courts tend to alter political perceptions.").
101. See McCANN, supra note 5, at 58 ("[M]any social scientists [have observed] that law-reform activity is highly newsworthy and that litigation is one of the most effective ways to win publicity for a cause."); id. at 145 ("[L]itigation can impose substantial transaction costs in terms of both direct expenditures and long term financial burdens."); id. at 206 (explaining that litigation may weaken the resolve of an adversary).
102. See Michael W. McCann, Social Movements and the Mobilization of Law, in SOCIAL MOVEMENTS AND AMERICAN POLITICAL INSTITUTIONS: PEOPLE, PASSIONS, AND POWER 201, 209 (Anne N. Costain & Andrew S. McFarland eds., 1998) ("[L]egal tactics often have proved useful in forcing attention to movement demands and compelling at least some general policy concessions from state officials or other powerful actors."); see also PAUL R. BREWER, VALUE WAR: PUBLIC OPINION AND THE POLITICS OF GAY RIGHTS 35 (2008) {"[Brown], which marked the culmination of a long-running legal effort by the [NAACP], pushed the debate about civil rights for African Americans to new heights of prominence on the national agenda (just as later court decisions would do for gay rights)."); Patrick J. Egan, Nathaniel Persily, & Kevin Wallsten, Gay
103. Rights, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY, supra note 37, at 234, 256 ("[Gay-rights litigation] produced tangible benefits for the plaintiffs involved and for those who otherwise might be subject to a subordinate legal status[,] ⋯ led to a favorable change in public opinion on civil unions, ⋯ and perhaps accelerated legal change in some states in a direction amenable to some legal recognition of gay relationships."); Murakami, supra note 57, at 33 ("[T]he Brown decision did thrust the issue of segregation in the public schools to the fore of the national agenda. The number of articles on segregation published in the major national newspapers ⋯ increased dramatically in die wake of Brown."); Persily, supra note 37, at 9 ("[C]ourt decisions ⋯ can elevate issues onto the national agenda through media coverage, elite discussion, and other behavior that follows in their wake. The nature of court decisions' effects on public opinion is usually a product of the way elites react to the decision and the messages they send to the mass public concerning the issue adjudicated."); Michael Ratner, How We Closed the Guantanamo HIV Camp: The Intersection of Politics and Litigation, 11 HARV. HUM. RTS. J. 187, 193 (1998) (detailing Haitian-refugee litigation that, regardless of its chance of winning, was meant to keep a spodight on the issue).
104. Marc Galanter introduced the term "radiating" to describe diis phenomenon. See Marc Galanter, The Radiating Effects of Courts, in EMPIRICAL THEORIES ABOUT COURTS 117 (Keith O. Boyum & Lynn Mather eds., 1983).
105. See Jason Pierceson, Deconstructing the Backlash: Same-Sex Marriage Litigation and Social Change in the United States and Canada, in SAME-SEX MARRIAGE IN THE AMERICAS: POLICY INNOVATION FOR SAME-SEX RELATIONSHIPS 161, 174 (Jason Pierceson et al. eds., 2010) ("The approach of Rosenberg, [historian John] D'Emilio, and others is grounded in a normative commitment to grassroots, mass politics that is an engrained part of social sciences approaches to this topic").
106. See ROSENBERG, supra note 1, at 427.
107. It should be noted that Rosenberg's and Klarman's attention to backlash could be conceptualized as attention to loss. Neither, however, deals specifically with scenarios in which the forces reacting against die court decisions were actually parties to die litigation. Instead, Rosenberg situates backlash as "powerful political resistance" by die public and elites, radier
108. than as a social movement response in its own right See id. at 417. Indeed, diis point functions within his view of constrained courts (and tfieir inability to implement ordered change) rather dian in a model of lawyers translating judicial outcomes into social movement tools. Likewise, Klarman focuses on die counterproductive effects of litigation victory radier tiian on loss. See Klarman, supra note 47.
109. See ROSENBERG, supra note 1, at 7 (noting that his analysis "concentrate[s] on die U.S. Supreme Court").
110. Id. at 31. For example, in assessing the impact of litigation on die environmental movement, Rosenberg first looks at activists' win-loss rate, dien explores whedier issued decrees were effectively implemented. See id. at 275.
111. Id. at 421.
112. David Schultz and Stephen Gotdieb contend diat because Rosenberg does not explore whedier results would differ if courts did not attempt to produce reform, his pessimistic assessment of courts' effectiveness relative to other government actors and his conclusion diat courts do not influence social change are unconvincing. See David Schultz & Stephen E. Gotdieb, Legal Functionalism and Social Change: A Reassessment of Rosenberg's The Hollow Hope: Can Courts Bring About Social Change?, 12 J.L. & POL. 63, 66 (1996).
113. See, e.g., ROSENBERG, supra note 1, at 277-78.
114. See Gerald N. Rosenberg, Courting Disaster: Looking for Change in All the Wrong Places, 54 DRAKE L. REV. 795, 815 (2006) [hereinafter Rosenberg, Courting Disaster] ("[C]ourts acting alone ⋯ are structurally constrained from furthering the goals of the relatively disadvantaged."); Gerald N. Rosenberg, Positivism, Interpretivism, and the Study of Law, 21 LAW & Soc. INQUIRY 435, 448 (1996) [hereinafter Rosenberg, Positivism] (explaining tiiat, unlike an interpretive mediodology, a "positivist mediodology ⋯ separate [s] die effects of law from die effects of odier variables"). This approach has been extensively criticized. See, e.g., Schuck, supra note 17, at 1771-72 (arguing diat Rosenberg overlooks important "dynamic effects," including "die repetitive, dialogic nature of die interactions between courts, legislatures, agencies, and other social processes, as well as the political synergy that some litigation engenders"); Schultz & Gotdieb, supra note 74, at 66 (arguing that Rosenberg ignores "die power of courts to redefine structures and expectations").
115. See Robert Post, Law Professors and Political Scientists: Observations on the Law/Politics Distinction in the Guinier/Rosenberg Debate, 89 B.U. L. REV. 581, 584 (2009).
116. As Lani Guinier argues, "Within Professor Rosenberg's critique ⋯ lurks a deep disciplinary tension about the nature of causation and the primacy of uniform metrics of measurement, as well as the meaning of political participation and influence. What I value about political engagement cannot simply be reduced to what can be measured." Guinier, supra note 57, at 553.
117. See Post, supra note 77, at 585 (arguing that "Rosenberg's obsession with social science methodology leads him to misinterpret die nature of⋯ arguments" that see courts as part of a political dialogue).
118. See ROSENBERG, supra note 1, at 147-48; see also Cummings & Nejaime, supra note 9, at 1238-39.
119. See Scott L. Cummings, Access and Accountability in Public Interest Practice: Old Paradigms and New Directions, in LAWYERS IN PRACTICE, ETHICAL DECISION MAKING IN CONTEXT (Leslie Levin & Lynn Mather eds., forthcoming 2011).
120. See Cummings & Nejaime, supra note 9, at 1318.
121. See Pierceson, supra note 68, at 174 ("Unfortunately, [Rosenberg's] normative bias prevents a wide-eyed look at empirical reality, particularly at the complex relationship between law, politics, and social change.").
122. See McCann, supra note 17, at 731.
123. See id.; McCann, supra note 2, at 8g (arguing that because "[l]egal consciousness does not develop ⋯ in a vacuum," scholars should "study law as it becomes meaningful in social practice rather than simply its mechanical behavioral effects as an alien force interjected into struggle from without"). Rosenberg faults McCann for focusing on context, arguing that prioritizing "the contextual over the consistent" sacrifices "the ability to generalize." Rosenberg, Positivism, supra note 76, at 446.
124. See McCann, Causal Versus Constitutive Explanations, supra note 8, at 463 ("[S]ocial conventions and knowledges (such as legal norms) are understood as 'constitutive' ⋯ of citizen meaning making activity." (footnote omitted)); McCann, Law and Social Movements, supra note 8, at 507 ("[A]n understanding of law as knowledge and linguistic practice calls attention to law's power as a constitutive convention of social life." (citing JOHN BRIGHAM, THE CONSTITUTION OF INTERESTS: BEYOND THE POLITICS OF RIGHTS (1996))); see also Malcolm M. Feeley, Hollow Hopes, Flypaper, and Metaphors, 17 LAW&Soc. INQUIRY 745, 752 (1992) ("[Tjhe very fact that so many people believe the courts are so important in effecting social change ⋯ lends considerable plausibility to Scheingold's argument about the symbolic importance of the language of rights."); Jane S. Schacter, Skepticism, Culture and the Gay Civil Rights Debate in a Post-Civil-Rights Era, 110 HARV. L, REV. 684, 719 (1997) (reviewing ANDREW SULUVAN, VIRTUALLY NORMAL: AN ARGUMENT ABOUT HOMOSEXUALITY (1995); and URVASHI VAID, VIRTUAL EQUALITY: THE MAINSTREAMING OF GAY AND LESBIAN LIBERATION (1995)) (arguing that "the relationship between law and culture [is] a dynamic, mutually constitutive one").
125. See McCann, supra note 2, at 89; see also Galanter, supra note 67, at 127 ("Law is more capacious as a system of cultural and symbolic meanings than as a set of operative controls.").
126. MCCANN, supra note 5, at 291; see also ScHEINCOLD, supra note 12, at 145 ("[L]aw can hardly transcend the conflicts of the political system in which it is embedded.").
127. See Galanter, supra note 67, at 123-24 ("[T] he effects of a court⋯ cannot be equated with the dispositions in the cases that come before it. There are a host of other effects that flow from the activity of a court⋯."). In significant ways, the legal mobilization framework shares common ground with the legal consciousness approach, which understands "law as forms of knowledge that saturate intersubjective social life in various ways and degrees" such that legal knowledge becomes a "cultural repertoire or 'toolkit' through which citizen subjects understand and negotiate their social activity." Michael McCann, On Legal Rights Consciousness: A Challenging Analytical Tradition, in THE NEW CrvU RIGHTS RESEARCH: A CONSTITUTIVE APPROACH ix, xii (Benjamin Fleury-Steiner & Laura Beth Nielsen eds., 2006).
128. See Eskridge, supra note 21, at 517 ("Because there are so many interlinked variables, it is hard to tell exactiy what effects any Supreme Court decision has had on the operation of American politics; because of the counterfactual nature of the inquiry, it is impossible to figure out what would have happened if the Court had taken a different path.").
129. See Galanter, supra note 67, at 126 ("A single judicial action may radiate different messages to different audiences."); id. at 123 ("The relation of courts (official forums) to disputes is multidimensional.").
130. SeeCummings & Nejaime, supranote 9, at 1319.
131. See David S. Meyer & Suzanne Staggenborg, Movements, Countermovements, and the Structure of Political Opportunity, 101 AM. J. Soc. 1628, 1636 (1996) ("Issues rarely become 'closed' with a single outcome such as new legislation, the recommendation of a government agency, or a court ruling.").
132. See Jane S. Schacter, Courts and the Politics of Backlash: Marriage Equality Litigation, Then and Now, 82 S. CAL. L. REV. 1153, 1158 (2009) ("[B]acklash against courts is best understood within the larger category of political backlash rather than as being sui generis.").
133. See Meyer & Staggenborg, supra note 93, at 1637. This model is consistent with the work of state constitutional scholars, who situate state courts as part of a conversation about general constitutional principles, rather than as isolated bodies with individualized constitutional cultures. See, e.g., Paul W. Kahn, Commentary, Interpretation and Authority in State Constitutionalism, 106 HARV. L. REV. 1147, 1148 (1993) ("The diversity of state courts is best understood as a diversity of interpretive bodies, not as a multiplicity of representatives of distinct sovereigns. The common object of state interpretive efforts is American constitutionalism.")
134. See Meyer & Staggenborg, supra note 93, at 1645. This observation is consistent with Robert Schapiro's theory of interactive federalism, in which "state and national power [operates] not in isolation, but in interconnection." Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. 243, 248 (2005); see also ROBERT A. SCHAPIRO, POLYPHONIC FEDERALISM: TOWARD THE PROTECTION OF FUNDAMENTAL RIGHTS 8 (2009) ("[R]ights are often best protected not through confining state and federal power in different areas, but by promoting the dynamic interaction of state and federal governments.").
135. See McCann, supra note 2, at 91 (explaining how activists can achieve concessions from adversaries based on "(legally sensible) rights claims"); see also MARTIN DUPUIS, SAME-SEX MARRIAGE, LEGAL MOBILIZATION, & THE POLITICS OF RIGHTS 21 (2002) ("Legal tactics are used to achieve placement on the public agenda by forcing attention to demands and compelling at least some policy concessions from state officials."); HANDLER, supra note 1, at 216 (explaining tiiat "lawsuits, especially if they are large ones seeking huge changes, with dramatic allegations in the complaint, serve" important publicity and fundraising purposes).
136. See, e.g., McCANN, supra note 5, at 89 ("[judicial victories transformed the tactical landscape in ways favorable to demands for specific new rights claims by potential constituents already concerned about gender justice at work."); Abel, supra note 7, at 95 ("[E]ven paper victories have value because of the substantial political cost to the state of disregarding or nullifying them.").
137. HANDLER, supra note i, at 217-18.
138. Id. at 2lg.
139. Id.; see also McCann, supra note 2, at 85 ("Judicial victories (or other legal actions) do not reveal injustice so much as improve the chances that such injustices might be effectively challenged by movement action in and out of courts." (citation omitted)).
140. McCann, for example, argues that "political struggles may advance more quickly, cheaply, and effectively when conducted in the shadow of favorable legal norms and threats of judicial intervention." McCann, supra note 2, at gi; see also DUPU1S, supra note Q-J, at 164 (cataloguing the series of wins and losses in marriage-equality cases, then focusing on the productive impact of those decisions that recognized relationship rights for same-sex couples); HANDLER, supra note 1, at 25 (analyzing the effects of the type of judicial remedy on the probabilities of success of social-reform groups); Keck, supra note 7, at 157 (responding to the pessimistic account of litigation by exploring the positive direct and indirect effects of court decisions recognizing same-sex relationships).
141. McCann, supra note 2, at 91; see also McCANN, supra note 5, at 168; McCann, supra note 17, at 739 n.50. Of course, I am not arguing that loss in court is necessarily mobilizing. Instead, I am showing that in some cases litigation loss can have surprisingly productive effects on a social movement.
142. McCann, supra note 2, at g4.
143. See, e.g., DUPUIS, supra note g7, at 21 ("Victory in court is not even necessary for political leveraging because the indirect effects of litigation, usually resulting from a rights discourse, can exert significant pressure on the targeted party.").
144. see MCCANN, supra note 5, at 168, 178.
145. McCann, Law and Social Movements, supranoteSS, at 514.
146. See McCann, supra note 17, at 734 (pointing to the "ambiguous and indeterminate" nature of judicially constructed law to show that social movement lawyers enjoy room to construct "competing assessments, predictions, and hence tactical threats"). But see MCCANN, supra note 5, at 85 (noting that judicial defeats might have helped the pay-equity movement "by dramatizing social injustices").
147. See Olson, supra note 13, at 232. Like McCann, Olson provides a detailed case study to argue Uiat die indirect effects of litigation derive from litigation itself radier dian from positive judicial declarations. Focusing on die disability-rights movement, Olson documents how litigation, regardless of its outcome, helped to frame die movement's claims, bring it much-needed publicity, and increased its bargaining power. See id. at 227. Transportation litigation by disability-rights advocates achieved the movement's goals widiout actual court victories, due in part to die political pressure brought about by die litigation. See id. at 244.
148. See Scott Barclay & Shauna Fisher, Cause Lawyers in the First Wave of Same Sex Marriage Litigation, in CAUSE LAWYERS AND SOCIAL MOVEMENTS 84, 89 (Austin Sarat & Stuart A. Scheingold eds., 2006). For Barclay and Fisher's specific example of early failed litigation, see Singerv. Hara, 522 P.2d 1187, 1191 (Wash. Ct. App. 1974).
149. Barclay & Fisher, supra note 111, at 91. The recent cases succeeded in die lower courts before being rejected by a divided state supreme court. See Casde v. State, No. 04-2-00614-4, 2004 WL 1985215 (Wash. Super. Ct. Sept. 7, 2004), rev'd, 138 P.3d 963 (Wash. 2006); Andersen v. King County, No. 04-2-04964-4, 2004 WL 1738447 (Wash. Super. Ct. Aug. 4, 2004), rev'd, 138 P.3d 963.
150. Focusing on private litigants (rather than public lawyers), Barclay also documents the indirect dignitary benefits of litigation in the absence of victory. See Scott Barclay, Appealing (but Not Necessarily Winning) To Improve Your Social Status, 21 LAW & PoiA 427(1999).
151. See McCann, supra note 17, at 731 ("[L]egal action begins with the framing of legal demands ⋯ rather than with official court decisions.").
152. See Guinier, supra note 10, at 57-58 (arguing that while demosprudence shares with democratic constitutionalism the premise that the Supreme Court and the citizenry engage in an "ongoing conversation" about constitutional meaning, it envisions "a much more active and self-conscious role forjudges (and other legal professionals) in creating space for citizens (not just judges) to advance alternative interpretations of the law"); Post & Siegel, supra note 10 (arguing that citizens and elites share the power to give meaning to constitutional principles); see also Torres, supra note 10, at 136 ("The study of demosprudence is the study of the lawmaking and democracy enhancing effects of social movements as they influence and are disciplined by democratic practice."); Gerald Torres, Social Movements and the Ethical Construction of Law, 37 CAP. U. L. REV. 535, 582 (2009) ("[T]he people ultimately say what the law means, but the processes producing that meaning is neither fixed nor clean.").
153. In this way, democratic constitutionalism and demosprudence depart from popular constitutionalism, which posits that constitutional meaning should return to die people and be largely removed from die courts. See Post & Siegel, supra note 10, at 379 ("Unlike popular constitutionalism, democratic constitutionalism does not seek to take the Constitution away from the courts. Democratic constitutionalism recognizes the essential role of judicially enforced constitutional rights in the American polity."); see also Post, supra note 77, at 582 ("Judicial review does not foreclose political dialogue but advances it."). Indeed, to the extent the institutional move advanced by popular constitutionalists is motivated by a fear of backlash to countermajoritarian judicial decisions, it finds some common ground with Rosenberg's account. See Mark S. Kende, Foreword, 54 DRAKE L. REV. 7gi, 792 (2006). For accounts of popular constitutionalism, see LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004), MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999), and Jeremy Waldron, Essay, The Core of the Case Against Judicial Review, 115 YALE LJ. 1346 (2006).
154. Guinier, supra note 57, at 551; see also Eskridge, supra note 25, at 2065-66 (arguing diat social movements "transformed the normative context in which ⋯ cases were decided, eidier by linking⋯ new cases widi established norms or by persuading society and its judges to change die normative context in which social traits were evaluated").
155. Guinier, supra note 57, at 545.
156. See id. at 557. Tellingly, Rosenberg has recently targeted Guinier's work on demosprudence, subjecting her theory to the same criticisms he levels against legal mobilization scholars. See generally Gerald N. Rosenberg, Romancing the Court, 89 B.U. L. REV. 563 (2009) (criticizing die assumptions of die demosprudence model). In response, Guinier points out diat Rosenberg "dismisses die possibility of an ongoing and recursive conversation between law and politics diat may produce changes in die law." Guinier, supra note 57, at 547. Moreover, she argues diat Rosenberg "orients his entire critique around polling data and odier social science research to trivialize the relationship of narrative to culture, to exaggerate the predictive capacity of a data-driven approach to quantify causation and to preempt odier useful analytic approaches." Id. at 548. In addition, Post defends die methodological and dieoretical foundations of demosprudence and democratic constitutionalism against Rosenberg's attack. He explains diat diese dieories involve "understanding die dialogue between politics and law in ways diat transcend die reach of quantifiable variables and diat require die use of qualitative concepts." Post, supra note 77, at 587.
157. See Guinier, supra note io, at 59 ("That there is a healthy dialectic between an oppositional constitutional culture and the 'legal constitution' is the organizing idea behind demosprudence dirough dissent."). It must be noted that demosprudential theory has a significant normative-or, as Guinier puts it, "aspirational"-component, whereas both democratic constitutionalism and legal mobilization theory offer more comprehensive descriptive and interpretive accounts. See Guinier, supra note 57, at 559.
158. Post & Siegel, supra note 10, at 374; see also Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CALIF. L. REV. 1323, 1329 (2006) ("Typically, it is only through sustained conflict that alternative understandings are honed into a form that officials can enforce and the public will recognize as the Constitution.").
159. Post & Siegel, supra note 10, at 375.
160. See id.; see also Robert Post & Reva Siegel, Originalism As a Political Practice: The Right's Living Constitution, 75 FORDHAM L. REV. 545, 568 (2006) ("Scalia's Lawrence dissent ⋯ mobilized conservative constituencies to bring political pressure to bear on the development of constitutional law.").
161. This more nuanced understanding of law and social change overlaps in some ways with Heather Gerken's theory of "dissenting by deciding," in which "would-be dissenters- individuals who hold a minority view within the polity as a whole-enjoy a local majority on a decisionmaking body and can thus dictate the outcome." Heather K. Gerken, Dissenting by Deciding, 57 STAN. L. REV. 1745, 1748 (2005). Applied to my analysis of litigation loss, decisionmakers at subnational levels of government may respond to federal-court decisions with which they disagree by making policy, often based on independent state-law grounds, that not only registers disagreement with, but also implements policy opposed to, the earlier judicial decision.
162. Rosenberg takes the public's lack of knowledge of court decisions as evidence that courts do not have much influence. See Rosenberg, supra note 119, at 564. But introducing die concept of social movement intermediaries suggests that certain court decisions might be given meaning through various forms of social movement activism. See MCCANN, supra note 5, at 91 ("[C]ourt decisions and legal norms are not self-generating forces of defiant action. Rather, they constitute only potential resources that may or may not be mobilized in practical action."); see also Galanter, supra note 67, at 136 ("[T]he messages disseminated by courts do not carry endowments or produce effects except as they are received, interpreted, and used by (potential) actors.").
163. Torres, supra note io, at 136.
164. Guinier, supra note 57, at 554; Guinier, supra note 10, at 62-63.
165. Ever since Stuart Scheingold identified die "politics of rights," in which advocates capitalize on the less formal and more political function of rights, legal mobilization and cause lawyering scholars have built on his insights to demonstrate how social movement lawyers often cultivate die indirect benefits of litigation, regardless of its ultimate outcome, and exploit litigation for political power rather dian for judicial victories. In fact, cause lawyers themselves might assess litigation's effectiveness by examining the results achieved for dieir clients, radier dian by looking for a court's pronouncement of favorable law. See, e.g., McCANN, supra note 5; SCHEINGOLD, supra note 12, at 95; Barclay & Fisher, supra note 111; Ann Southworth, Lawyers and the "Myth of Rights" in Civil Rights and Poverty Practice, 8 B.U. PUB. INT. L.J. 469, 473 (1999).
166. Indeed, as Sandra Levitsky has shown, one can hold the opinion-as Rosenberg and Klarman do-that litigation has outpaced political will and therefore poses significant dangers to reform, yet still understand cause lawyers as generally sophisticated and strategic. See Sandra R. Levitsky, To Lead toith Law: Reassessing the Influence of Legal Advocacy Organizations in Social Movements, in CAUSE LAWYERS AND SOCIAL MOVEMENTS, supra note 111, at 145, 147, 158.
167. See Cummings & Nejaime, supra note 9, at 1242, 1312, 1329-30; see also Laura Beth Nielsen & Catherine R. Albiston, The Organization of Public Interest Practice: 1975-2004, 84 N.C. L. REV. 1591, 1612 (2006) (documenting increases in "research, education, and outreach" among contemporary public-interest law organizations).
168. See ROSENBERG, supra note 1, at 427 (arguing that "courts act as 'fly-paper' for social reformers who succumb to the 'lure of litigation'").
169. SaMcCANN, supra note 5, at 11 ("[A] useful theory of legal mobilization should give considerable attention to die interaction and interdependence among ⋯ various tactical dimensions of movement activity."); see also Cummings & Nejaime, supra note 9, at 1317 ("Accordingly, [LGBT-rights lawyers in California] did not look to courts as saviors, but rather saw diem as just one of many players⋯."); Keck, supra note 7, at 181; Nielsen & Albiston, supra note 130, at 1612 ("Our research suggests mat [public-interest law organizations] have moved beyond litigation as die sole focus of social change.").
170. See Cummings & Nejaime, supra note 9, at 1238, 1317-18; McCann, supra note 17, at 729; see also Mary L. Bonauto, Essay, Goodridge in Context, 40 HARV. C.R.-C.L. L. REV. 1, 30-31 (2005) (" Goodridge would not have occurred but for litigation and legislative activity working in tandem widi public education for many years."); Keck, supranote 7, at 175 ("Legal mobilization scholars have long observed tiiat it is difficult to find any actual litigators who have succumbed to the mydi diat legal rights are magic recipes for instant change ⋯.").
171. Social movement scholars David Meyer and Suzanne Staggenborg conceptualize movements and countermovements as opposing movements, rather than merely an original movement and a reactionary movement. See Meyer & Staggenborg, supra note 93, at 1632-33. Both movements have overlapping areas of concern and make competing claims on the state, see id. at 1632, and "each side affects the forms, development, claims, and efficacy of its opponent." Id. at 1654. This is a useful lens for thinking about the LGBT-rights and Christian Right movements and is crucial to exploring and appreciating the power of litigation loss in social movements. See id. at 1638; see also Wilson, supra note 3, at 172 (explaining that his analysis "looks at lawyers from opposing sides of⋯ conflicts, providing an immediate contrast that is not seen in the existing literature").
172. See McCann, Causal Versus Constitutive Explanations, supra note 8, at 464-66, 472-79 (defending the interpretive and constitutive approach). While I use quantitative analysis in one instance, I rely largely on qualitative analysis, including content analysis and case studies. See McCann, supra note 17, at 741-42 (explaining diat scholars of die decentered approach "tend to build from intensive case studies of targeted population groups or institutional venues" and therefore "emphasize in-depth interviews widi subjects, dense contextual mapping, and integrated narrative accounts as well as quantitative data"); Meyer & Staggenborg, supra note 93, at 1656 ("Content analyses of the documents generated by opposing movements can reveal the centrality of particular issues and alliances, die articulated strategies, and activists' perceptions of their own opportunities.").
173. See Meyer & Staggenborg, supra note 93, at 1629 ("[M]ovement and countermovement engage in sustained interaction with one another and not just die state. Because most empirical and dieoretical work on social movements focuses on movement challenges to the state, die phenomenon of ongoing interactions between opposing movements demands a revision and extension of our dieories of social movements and social change."). While one movement's litigation victory may be another movement's figurative loss, it is important to note diat my analysis includes only instances in which die social movement literally loses. That is, in the cases I explore, movement organizations are parties to die litigation, which allows movement advocates to argue direcdy to the courts and to function as actual winners and losers.
174. See Eskridge, supra note 21, at 423 ("The phenomenon by which social groups have presented dieir goals in constitutional terms has had a channeling effect on bodi die [identity-based social movements] and dieir inevitable countermovements."); Siegel, supra note 121, at 1329 (arguing diat movement-countermovement dynamics play "a crucial part in constitutional development"). A social movement consists of "collective challenges by people widi common purposes and solidarity in sustained interaction widi elites, opponents, and audiorities." SIDNEY TARROW, POWER IN MOVEMENT: SOCIAL MOVEMENTS, COLLECTIVE ACTION AND POLITICS 3-4 (1994). "A 'countermovement' is a movement diat makes contrary claims simultaneously to diose of the original movement." Meyer & Staggenborg, supra note 93, at 1631.
175. SeeEskridge, supra note 25, at 2195 ("[A]nti-discrimination laws enacted in response to [identity-based social movement] demands for remediation fall or are limited in die face of countermovement constitutional attack, which stimulates the [identity-based social movement] to fight back on odier fronts.").
176. See Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC"Y REV. 95, 101-03 0974)- The individual plaintiff, largely concerned widi a remedy for her immediate complaint, will accept a setUement; the repeat player avoids an unfavorable precedential ruling while continuing to litigate other plaintiffs' weaker cases and thereby accumulating more favorable case law. In this sense, repeat players control the trajectory of legal interpretation by controlling the cases on which courts actually rule; deliberate loss allows powerful parties to enjoy a favorable selection effect in judicial decisions. See id. at 101 ("We would then expect [repeat players] to 'setde' cases where diey expected unfavorable rule outcomes."); see also Marc Galanter, Afterword: Explaining Litigation, 9 LAW & SOC'YREV. 347, 361 (1975) ("A calculating settlement policy reflects [organizations'] skill as litigants ⋯.").
177. Catherine Albiston, The Rule of Law and the Litigation Process: The Paradox of Losing by Winning, 33 LAW & Soc'Y REV. 869,877 (1999) ("[R]epeat player employers may ⋯ settle cases they expect to lose and litigate those they expect to win, ensuring that judicial interpretations of the statute occur in cases with the odds in their favor."). In a careful case study of the litigation process surrounding the Family and Medical Leave Act, Albiston demonstrates how repeat defendants seize on the rule-making potential of published judicial decisions while one-time plaintiffs are more likely to prevail at trial or to accept a settlement, neither of which generally yields precedential authority. See id. at 883-84, 901-02. In this sense, powerful clients and sophisticated lawyers understand that the significance of wins and losses may depend on their procedural posture, such that choosing to concede in some cases-what Albiston calls "strategic settlement"-may benefit the losing party. See id. at 873.
178. Additionally, while Galanter and Albiston focus on the development of legal doctrine within a judicial setting, I examine the development of a social movement and advancement of that movement's agenda in legal and nonlegal venues. Interestingly, Rosenberg characterizes Galanter's work as focusing on the factors that contribute to the outcomes of cases rather than on the effects of judicial decisions. See ROSENBERG, supra note 1, at 9.
179. Albiston also points out other examples of losing by winning: Under Supreme Court precedent, a public-interest organization may secure a favorable result for its client and yet sacrifice legal fees that are essential to the organization's survival. See Albiston, supra note 140, at 876 ("[R]epeat players can defeat the social change objectives of die public interest organization by offering the plaintiff a substantial sum for his or her damages while refusing to pay legal fees."); Catherine R. Albiston & Laura Beth Nielsen, The Procedural Attack on Civil Rights: The Empirical Reality o/Buckhannon for the Private Attorney General, 54 UCLAL. REV. 1087, 1091 (2007) (explaining that Buckhannon Bd. Care & Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598 (2001), in which the Supreme Court held that serving as a "catalyst" for the defendant's voluntary change in behavior is not sufficient to support a fee award under federal fee-shifting statutes, facilitates "strategic capitulation").
180. See Guinier, supra note 57, at 555 ("The technology of dissemination ⋯ is certainly relevant to who hears die story and who understands it.").
181. Compared to TMLC, odier Chrisuan Right legal organizations, such as the American Center for Law and Justice ("ACLJ"), die Alliance Defense Fund ("ADF"), and Liberty Counsel, boast larger budgets and/or closer ties to die political leadership of die movement. See Douglas Nejaime, Inclusion, Accommodation, and Recognition: Accounting for Differences Based on Religion and Sexual Orientation, 32 HARV.J.L. & GENDER 303, 323 (2009).
182. See, e.g., ELLEN ANN ANDERSEN, OUT OF THE CLOSETS & INTO THE COURTS: LEGAL OPPORTUNITY STRUCTURE AND GAY RIGHTS LITIGATION I 21 (2005) (noting that the "Litigators' Roundtable was successor to the Ad-Hoc Task Force"); Boutcher, Making Lemonade, supra note 13, at 11 (describing the National Lesbian and Gay Civil Rights Roundtable, headed by Lambda Legal in the wake of Bowers, which allowed advocates "to coordinate litigation strategies among a variety of different issues"); see also Cummings & Nejaime, supra note 9, at 1269-70 (discussing the California Marriage Litigation Roundtable, which met to discuss the possibility of marriage litigation in California).
183. For instance, GLAD handles litigation in New England, including the marriage cases in Vermont, Massachusetts, and Connecticut. In the California marriage litigation, NCLR, ACLU, and Lambda Legal all served as counsel; all three firms cooperated in the litigation to present a coherent, unified front
184. About GLAD, GAY & LESBIAN ADVOCATES & DEFENDERS, http://www.glad.org/about/ (last visited Jan. 12, 2011).
185. 539 U.S. 558 (2003).
186. Making the Case for Equality, LAMBDA LEGAL, http://www.lambdalegal.org/ about-us/history.html (last visited Jan. 12, 2011).
187. Cf. ANN SOUTHWORTH, LAWYERS FOR THE RIGHT: PROFESSIONALIZING THE CONSERVATIVE COALITION 2 (2008) (documenting the competing ideologies and priorities that characterize the conservative legal movement, which includes libertarians, business interests, and social and religious conservatives).
188. During this time, the president of ADF announced that "[w]hile we can bring about quick fixes in the voting booth, it is in the courts that we will bring about the type of change that transcends all generations." Alliance Defense Fund, Winning Precedent-Setting Cases for You and Your Family, ADF BRIEFINC, May 1996, at 4.
189. See Ann Southworth, Conservative Lawyers and the Contest over the Meaning of "Public Interest Law,"52 UCLAL. REV. 1223, 1245 (2005).
190. See History of ACL, AM. CTR. FOR LAW & JUSTICE, http://www.aclj.org/ About/Default. aspx?Section=io (last visited Jan. 12, 2011).
191. See About the Alliance Defense Fund, ALLIANCE DEF. FUND, http://www.alliancedefense fund.org/About (last visited Jan. 12, 2011).
192. See Nejaime, supra note 144, at 323.
193. About Chief Counsel, AM. CTR. FOR LAW & JUSTICE, http://www.aclj.org/ About/default. aspx?Section=n (last visited Jan. 12,2011).
194. About the Alliance Defense Fund, supra note 154 ("A History of Success" timeline).
195. See History, THOMAS MORE LAW CTR., http://www.thomasmore.org/qry/page. taf?id=24 (last visited Jan. 12, 2011).
196. Contact Us, THOMAS MORE LAW CrR., http://www.thomasmore.org/qry/page.taf? id=2Q, (last visited Jan. 12,2011).
197. See Thomas More Law Ctr., Return of Organization Exempt from Income Tax (Form 990) 1 (Nov. 17, 2008), available at http://dynamodata.fdncenter.0rg/990- pdf-archive/383/3 834482g7/383448297-2oo712-990.pdf (revenue of approximately $1.8 million); Liberty Counsel, Return of Organization Exempt from Income Tax (Form 990) 1 (Nov. 12, 2007), available at http://dynamodata.fdncenter.org/ 990-pdf-archive/592/592986294/592986294-990.pdf (revenue of approximately $1.4 million); The Becket Fund, Return of Organization Exempt From Income Tax (Form 990) 1 (Aug. 15, 2008), available at hup:// dynamodata.fdncenter.org/ 990-pdf-archive/521/521858532/521858532-200709-9go.pdf (revenue of approximately $1.8 million).
198. See HANS J. HACKER, THE CULTURE OF CONSERVATIVE CHRISTIAN LITIGATION 62-64 (2005).
199. See id. at 22.
200. See Am. Ctr. for Law & Justice, Return of Organization Exempt from Income Tax (Form 990) 4 (Nov. 13, 2007), available at http://dynamodata. fdncenter.org/990-pdf-archive/611/611190087/611190087.200612-990.pdf (revenue of approximately $10 million).
201. I am indebted to Liz Treckler for her careful work on diis project. Gary Gates, the Williams Distinguished Scholar at the Williams Institute at UCLA School of Law, provided essential advice on the methodology employed here.
202. In this sense, I recognize Uiat I rely on a simplistic assessment of winning and losing that fails to account for the premeditated, strategic deployment of loss documented by Galanter and Albiston. See, e.g., Albiston, supra note 140, at 901 ("Studies addressing who wins often treat 'winning' as victory in published judicial opinions.").
203. TMLC recorded eighteen wins and thirty-two losses.
204. Overall, Becket Fund recorded fifty-eight wins and forty losses, Liberty Counsel recorded sixty-four wins and eighty-one losses, and ACLJ recorded fifty-four wins and sixty-two losses. Of course, these firms, which have a greater number of total cases than TMLC, record more losses, but the loss rate is the relevant measure here. Although my analysis suggests otherwise, Liberty Counsel publicly claims a 92% success rate since 2004. About Us, LIBERTY COUNSEL, http://www.lc.org/index.cfm?pid= 14096 (last visited Dec. 24, 2010). While Liberty Counsel does not reveal the basis for its calculation, it appears that the organization dramatically inflates its success rate for purposes of public messaging.
205. Non-amicus cases, Becket Fund recorded twenty-three wins and twenty-one losses, Liberty Counsel recorded forty-five wins and sixty losses, and ACLJ recorded thirty-one wins and forty-one losses.
206. SeeNeJaime, supra note 144, at 347-48.
207. See id. at 337-38.
208. See id. at 338.
209. See id. at 327-28, 333-34.
210. Here I included a case in which TMLC successfully represented a parent and student challenging what was arguably studentmn programming. See Hansen v. Ann Arbor Pub. Sch., 293 F. Supp. 2d 780, 782-83, 815 (E.D. Mich. 2003).
211. Because I am interested in school-programming litigation as a percentage of total cases, here I separate out individual cases rather than rely on die total number of judicial decisions. Of a non-amicus caseload of diirty-one cases, TMLC took on seven school-programming cases. Of a non-amicus caseload of seventy-one cases, Liberty Counsel took on ten school-programming cases. Of a non-amicus caseload of fifty-nine cases, ACLJ took on seven school-programming cases. Becket Fund did not pursue any school-programming cases in a non-amicus capacity.
212. TMLC recorded two wins and seven losses, Liberty Counsel recorded five wins and eleven losses, and ACLJ recorded four wins and six losses. Becket Fund participated in an amicus capacity only in school-programming litigation, and in diose cases recorded two wins and two losses.
213. Although curriculum, including creationism, has been rejected under Establishment Clause principles, Christian Right advocates have looked to intelligent design as a new way to bring a religiously informed view into die science classroom by presenting tiiis view as a competing scientific account. See David K. DeWolf, Stephen C. Meyer & Mark Edward DeForrest, Teaching the Origins Controversy: Science, or Religion, or Speech?, 2000 UTAH L. REV. 39, 79-80.
214. Laurie Goodstein, In Intelligent Design Case, a Cause in Search of a Lawsuit, N.Y. TIMES, Nov. 4, 2005, at Ai6.
215. SeeKitzmillerv. Dover Area Sch. Dist, 400 F. Supp. 2d 707, 708 (M.D. Pa. 2005).
216. Goodstein, supra note 177.
217. See Kitzmiller, 400 F. Supp. 2d at 765 (finding that intelligent design "cannot uncouple itself from its creationist, and thus religious, antecedents" and concluding diat the school board's intelligent-design policy violates the Establishment Clause).
218. Goodstein, supra note 177.
219. Kim Kozlowski, Law Center Fights Battles of Faith, DETROIT NEWS, Dec. 4, 2005, 2005 WLNR 26932896.
220. See generally LOBEL, supra note 13 (describing "prophetic litigation" as what occurs when oppressed communities are committed to a legal view that courts do not accept); Lobel, Justice As Struggle, supra note 13 (explaining that "prophetic litigation" offers new meanings to conventional legal principles as part of a group's struggle against subordination). As one of the few legal scholars to directly address the implications of judicial defeat, Lobel argues that "losing litigation becomes a part of the community's understanding of its view of the law and a reflection of the community's commitment to struggle for its view." LOBEL, supra note 13, at 1 j 8. Lobel devotes attention primarily to the social justice aspirations of subordinated minority groups and focuses on claims that eventually prevail-thus the label "prophetic litigation." Id. at 115, 118.
221. LOBEL, supra note 13, at 123.
222. Lobel explicitly resists an argument that losing litigation necessarily has "a positive effect in its era." Lobel, Justice As Struggle, supra note 13, at 1356.
223. Press Release, Thomas More Law Ctr., Court Issues Troubling Decision in Dover Intelligent Design Case, (Dec. 21, 2005), http://www.uiomasmore.org/qry/ page.taf?id=ig&-function=detail&sbtblct-uid1=80.
224. See discussion supra Part II-A.
225. See Nejaime, supra note 144, at 368 ("[C]ourts turn down die claims of religious parents by adhering to a liberal, pluralist vision tfiat calls for exposure to difference and to a normative view of education diat prioritizes critical, rational deliberation when faced widi competing conceptions of die good life.").
226. Richard Thompson, A Special End of the Year Update from Richard Thompson: There's Still Time, THOMAS MORE LAWCTR., (Dec. 30, 2008), http://www. thomasrnore.org/qry/page.taf?id=19&-function=print&sbtblct-uid1= 566&month=i2&year=2008.
227. Id.
228. See David S. Meyer & Steven A. Boutcher, Signals and Spillover Brown v. Board of Education and Other Social Movements, 5 PERSP. ON POL. 81, 90 (2007) ("Continued litigation fills a distinct organizational niche within a social movement, and makes use of well-established organizational expertise; even in the absence of social change, it is an organizational survival strategy.").
229. See id. ("[A]dvocates of social change continue to litigate at least partly because their opponents do. When an opposing group seeks to pursue its interests through the courts, it virtually forces its opponent to do the same-or risk leaving a potentially important front in the political battle undefended.").
230. See Kevin R. den Dulk, Purpose-Driven Lawyers: Evangelical Cause Lawyering and the Culture War, in THE CULTURAL LIVES OF CAUSE LAWYERS 56, 76 (Austin Sarat & Stuart Scheingold eds., 2008).
231. See Thompson, supra note 189 (noting that TMLC lawyers will continue "to fight the enemy").
232. As Austin Sarat argues in an influential cause lawyering piece on death-penalty litigators-one of the only cause lawyering treatments of losing litigation-"the lawyer for a losing cause serves as a witness testifying against [present] injustices" and "ensure [s] that, even when no one (including judges) seems willing to listen, the voices of the 'oppressed' will not be silenced." Sarat, supra note 13, at 323. As part of a robust vision of constitutional meaning-making, Sarat situates lawyers for losing causes within a tradition in which "lawyers refuse to recognize the violence of the present moment as the defining totality of law." Id. at 322. In doing so, he relies on Robert Cover's idea of "redemptive constitutionalism. " See Robert M. Cover, The Supreme Court, 1982 Term-Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 34 (1983). Yet, like Lobel, Sarat focuses on a historical trajectory rather than present-day implications. He faults the narrow, immediate focus of most cause lawyering scholarship, arguing, "The ability of cause lawyers to speak to the future and memorialize the present⋯ has been ignored by those who have worried too much about the impact of cause lawyering on die political possibilities of the present." Sarat, supra note 13, at 324. 196. See Kozlowski, supra note 182.
233. See Meyer & Staggenborg, supra note 93, at 1646 (explaining that the Supreme Court's decision in Webster v. Reprod. Health Servs., 492 U.S. 490 (1989), which allowed some limitations on abortion services, "led to an unprecedented growth in the abortion rights movement as supporters feared that abortion would once again be made illegal").
234. See Post & Siegel, supra note 10, at 432 (predicting that an antiabortion decision "will provoke abortion rights advocates to renewed mobilization"); cf. Meyer & Staggenborg, supra note 93, at 1647 ("Losses generate support by creating alarm, but eventually they have a demobilizing effect as supporters give up hope in the absence of progress toward their goals.").
235. See, e.g., ROSENBERG, supra note 1, at 425; Eskridge, supra note 21, at 465 ("[T]here was a fall-off of intensity in the pro-choice movement after Roe."). Many scholars have documented die explosive mobilization of the antiabortion-pro-life movement in the wake of the Supreme Court's Roe decision. See, e.g., GENE BURNS, THE MORAL VETO: FRAMING CONTRACEPTION, ABORTION, AND CULTURAL PLURALISM IN THE UNITED STATES 12 (2005); SUZANNE STAGGENBORC, THE PRO-CHOICE MOVEMENT: ORGANIZATION AND ACTIVISM IN THE ABORTION CONFLICT (1991); Post & Siegel, supra note 10.
236. See ROSENBERG, supra note 1, at 425 ("Successful litigation for significant social reform runs the risk of instigating countermobilization. ").
237. SeeBoutcher, Making Lemonade, supra note 13, at 9 (describing legal defeats as threats to social movements).
238. Meyer and Staggenborg, for instance, explain how after die Supreme Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), in which die Court affirmed the right to abortion but permitted various restrictions so long as diey did not create an "undue burden" on die underlying right, bodi sides framed die decision as a loss. Meyer & Staggenborg, supra note 93, at 1646 ("Bodi abortion rights and antiabortion groups, recognizing the value of threatening outcomes, claimed the ruling was in fact a victory for the other side.").
239. Meyer & Staggenborg, supra note 93, at 1644 (arguing that "it was easier for antiabortion forces to mobilize after the abortion rights victory" in Roe); cf Nicholas Pedriana, Help Wanted NOW: Legal Resources, the Women's Movement, and the Battle over Sex-Segregated Job Advertisements, 51 Soc. PROBS. 182, 191-93 (2004) (showing how the women's-rights movement, and specifically NOW, mobilized in the face of unfavorable EEOC interpretations relating to sex-segregated job advertisements).
240. See Post & Siegel, supra note 10, at 390 ("[C]ontroversy provoked by judicial decisionmaking might even have positive benefits for the American constitutional order. Citizens who oppose court decisions are politically active.").
241. 478 U.S. 186 (1986) (upholding the constitutionality of Georgia's anti-sodomy statute).
242. See Boutcher, Making Lemonade, supra note 13; Boutcher, Mobilizing in the Shadow of the Law, supra note 13. Indeed, Boutcher is correct to point out that "[t]he literature is relatively silent on the effect of legal defeats." Boutcher, Mobilizing in the Shadow of the Law, supra note 13, at 7.
243. See Boutcher, Mobilizing in the Shadow ofthe Law, supra note I3,at8-n.
244. See Boutcher, Making Lemonade, supra note 13, at 10-11. In her analysis of the gay-rights movement's litigation strategies, Ellen Ann Andersen uses social movement theory to make a similar claim. See ANDERSEN, supra note 145, at 217 (arguing that Bowers demonstrates that "litigation losses can be used to advance political ends").
245. og. SeeDuPUIS, supra note 97, at 162-63 (explaining that judges share the public's biases and therefore cannot be expected to promote social change that runs counter to public sentiment); William B. Rubenstein, Essay, We Are Family: A Reflection on the Search far Legal Recognition of Lesbian and Gay Relationships, 8 J.L. & POL. 89, 105 (1991) ("Yet in the end judges ⋯ share all of the biases and limitations of the public itself.").
246. Boutcher, Making Lemonade, supra note 13, at 10; see also ANDERSEN, supra note 145, at 94-95 (describing Lambda Legal's post-Bowers fundraising pitch: "There is no doubt that the Supreme Court's decision last week will add new vigor to hate campaigns against us, including calls to enforce energetically the sodomy laws already on the books and efforts to reintroduce sodomy laws in the 25 states that are free from them at present.").
247. See Boutcher, Making Lemonade, supra note 13, at 1 o; see also ANDERSEN, supra note 145, at 44 ("Lesbians and gay men were clearly angered by the Court's ruling. Within hours of its announcement, small protests erupted in several cities across the nation."); DUPUIS, supra note 97, at 24 ("The Hardwick case generated days of protests across the country mobilizing the gay and lesbian community.").
248. See Boutcher, Making Lemonade, supra note 13, at 11 (describing a targeted fundraising campaign by the National Gay and Lesbian Task Force); see also ANDERSEN, supra note 145, at 45-46 ("Although there is no way to know for certain how much additional funding Lambda was able to leverage out of Hardwick, the threefold increase in individual contributions in 1986 compared to 1985 suggests that Lambda was reasonably successful in using a litigation defeat to mobilize support.").
249. See Boutcher, Making Lemonade, supra note 13, at 11.
250. Press Release, Lambda Legal, Washington State Supreme Court Rules Against Marriage for Same-Sex Couples (July 26, 2006), http://www.lambdalegal.org/news/ pr/wa-20o6o726-wa-supremeourt-rules-against-marriage-for-same-sexouples.html.
251. Id.
252. Although Meyer and Staggenborg do not distinguish between legal and political loss, they note that "[d]efeats, provided they are not completely devastating, also mobilize supporters by creating outrage or a sense of threat, while conclusive victories have a demobilizing effect." Meyer & Staggenborg, supra note 93, at 1644-45.
253. See generally Clifford Rosky, Like Father, Like Son: Homosexuality, Parenthood, and the Gender of Homophobia, 20 YALE J.L. & FEMINISM 257 (2009) (documenting this biased treatment-with stereotypes specific to lesbians, on the one hand, and gay men, on die other- in the family-law domain); Eskridge, supra note 25, at 2195 n.653 (explaining the difficult process of convincing judges widi the same prejudices against which the social movement is fighting). A high-profile example emerges from Bowers, which situated gay men as mere sex actors akin to other sex criminals. See Bowers v. Hardwick, 478 U.S. 186, 195-96 (ig86). A more recent example comes from Justice Scalia's dissent in Romer v. Evans, 517 U.S. 620, 644-46 (1996) (Scalia.J., dissenting).
254. Press Release, Lambda Legal, supra note 214.
255. See Guinier, supra note 57, at 554; Guinier, supra note 1 o, at 62-63.
256. See Perez v. Sharp, 198 P.2d 17, 29 (Cal. 1948).
257. Press Release, Lambda Legal, supra note 214.
258. Id.
259. McCann, for instance, explains that the "leveraging role to some degree represents the flip side of law's role as a catalyst to movement building." McCANN, supra note 5, at 138.
260. I document this phenomenon in the LGBT-rights context, but examples exist across social-change campaigns. See, e.g., Justin R. Long, Essay, Demosprudence, Interactive Federalism, and Twenty Years o/Sheffv. O'Neill, 42 CONN. L. REV. 585, 601-03 (2009) (describing the shift by civil-rights lawyers from federal- to state-constitutional litigation over educational rights).
261. See id. at 588 ("State constitutionalism ⋯ can and should function as a legal space for contesting the dominant federal interpretation of national norms."); Lawrence Friedman, The Constitutional Value of Dialogue and the New Judicial Federalism, 28 HASTINGS CONST. L.Q, 93, 97 (2000) ("[I]n acknowledging the value of dialogue, a state court not only honors the authority of its institutional role within die federal scheme, it also engages the U.S. Supreme Court in discourse about the interpretive possibilities inherent in [contested] constitutional provisions ⋯."); Kahn, supra note 95, at 1166 (arguing that when a "state court interprets] American constitutionalism," it fills a function diat "accords with a longstanding justification of federalism under which state governments provide a forum for discussion, disagreement, and opposition to actions of the national government").
262. See, e.g., Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987) ("If the Court [in Bowers] was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious."). But jaRomer v. Evans, 517 U.S. 620, 635-36 (1996).
263. Douglas Reed argues that a more competitive and participatory, and less judge-centric, process of constitutional interpretation occurs at the state level as compared to the federal level. See Douglas S. Reed, Popular Constitutionalism: Toward a Theory of State Constitutional Meanings, 30 RUTGERS LJ. 871, 875 (1999).
264. See Boutcher, Making Lemonade, supra note 13, at 10.
265. Q. These include Equality California, Love Makes a Family (Connecticut), Equality Florida, Equality Illinois, Indiana Equality, Kentucky Fairness Alliance, Forum for Equality (Louisiana), Equality Maryland, Triangle Foundation (Michigan), Michigan Equality, Outfront Minnesota, New Jersey Lesbian & Gay Coalition, Equality New Mexico, Empire State Pride Agenda (New York), Equality North Carolina, Basic Rights Oregon, Equality Advocates Pennsylvania, Equality Utah, Outright Vermont, Equality Virginia, and Fair Wisconsin.
266. SceBoutcher, Making Lemonade, supranote 13, at 12.
267. Who We Are, EQUALITY FED'N, http://www.equalityfederation.org/template. aspx?id=3 (last visited Dec. 25, 2010).
268. See discussion supra Part III A.
269. See Cummings & Nejaime, supra note g, at 1317.
270. This move is consistent with the claims of state-constitutional scholars who see state courts as important parts of a national dialogue about American constitutional principles. See JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS: A JURISPRUDENCE OF FUNCTION IN A FEDERAL SYSTEM 20 (2005) (explaining that state courts have "the authority to depart from federal precedent and to construe state constitutional rights provisions more broadly than the Supreme Court construes equivalent provisions of the federal Constitution"); Long, supra note 224, at 595 ("Given dieir capacity to insulate state constitutional holdings from U.S. Supreme Court review, state high courts enjoy a special power to resist the Supreme Court's tendency to shrink die national constitutional imagination."); Schapiro, supra note 96, at 249 ("[A] proper understanding of federalism and of the role of die dual judicial system in implementing federalism reveals important, untapped resources for the protection of individual rights.").
271. This includes litigation aimed at sodomy reform, parental rights, and relationship recognition. See, e.g., Commonwealth v. Wasson, 842 S.W.2d 487, 488-92 (Ky. 1992) (sodomy litigation); In rejacob, 660 N.E.2d 397, 398 (N.Y. 1995) (second-parent adoption litigation); Baker v. State, 744 A.2d 864, 867 (Vt. 1999) (relationship-recognition litigation).
272. See GARDNER, supra note 234, at 20 ("[U]nder the structure of our federal system, state constitutional law is jurisprudentially independent of federal constitutional law and need not follow or even acknowledge it."); SCHAPIRO, supra note 96, at 130 (explaining how after the U.S. Supreme Court found Georgia's anti-sodomy law constitutional in Bowers under the federal Constitution, the Georgia Supreme Court held that the same law violated Georgia's Due Process Clause); Eskridge, supra note 21, at 518 (arguing that Bowers' "damage is ameliorated by the aggressive review of sodomy laws by state courts under state constitutions"). Furthermore, the shift to state courts, which by definition are more locally oriented venues, might help overcome a key constraint faced by courts. Given judges' responsiveness to legislative and community preferences, this shift might see judicial decisions more protective of LGBT rights where elite and popular support for such rights exists at the state level Cf. Gerken, supra note 124, at 1782-91 (exploring the relationship between federalism and the power of "dissenting by deciding"). In other words, a judicial decision by the Connecticut Supreme Court declaring same-sex couples' right to marry under the Connecticut Constitution would meet with less resistance than a U.S. Supreme Court decision declaring same-sex couples' nationwide right to marry under the federal Constitution. Compare the relatively smooth implementation of the Connecticut Supreme Court's decision in Kerrigan v. Department of Public Health, 957 A.2d 407 (Conn. 2008), with the serious concerns surrounding die countermobilization that a favorable Supreme Court decision in the pending Perry v. Schwarzenegger litigation would yield. See, e.g., Douglas Nejaime, Gay Rights: The Ups and Downs of Going Mainstream, JURIST (July 14, 2009), http://jurist.law.pitt.edu/ forumy/2009/07/gay-rights-ups-and-downs-of-going.php.
273. 942 P.2d 112 (Mont. 1997).
274. See id. at 115.
275. See id. at 125-26.
276. See id. at 121-22.
277. Id. at 121.
278. Id.
279. See, e.g., Jegley v. Picado, 80 S.W.3CI 332 (Ark. 2002); Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992); Doe v. Ventura, No. MC 01-489, 2001 WL 543734 (Minn. Dist. Ct. May 15, 2001); see also ANDERSEN, supra note 145, at 100-01 (noting the "utility of a state-by-state approach to eradicating sodomy laws" in the wake of Bowers). Even the Georgia Supreme Court struck down die same anti-sodomy law upheld in Bowers. See Powell v. State, 510 S.E.2d 18, 26 (Ga. 1998) (holding diat the state constitutional guarantee of privacy prohibits criminalization of private, consensual, noncommercial sex).
280. See Boutcher, Making Lemonade, supra note 13, at 12.
281. See Lawrence v. Texas, 539 U.S. 558, 573 (2003) ("In our own constitutional system die deficiencies in Bowers became even more apparent in the years following its announcement The 25 States with laws prohibiting die relevant conduct referenced in die Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct."); see also ANDERSEN, supra note 145, at 140-41 ("By turning to state constitutional claims, Lambda and its colleagues were able to continue chipping away at state sodomy laws. The reduction in die number of states widi sodomy laws in turn undermined die 'majoritarian morality' claim diat served as a basis for die ruling in Bowers").
282. This federal-state interaction is consistent widi state-constitutional scholars' claims diat "state constitutional jurisprudence can usefully function as a site of resistance to federal constitutional interpretations. " Long, supra note 224, at 588.
283. See Post & Siegel, supra note 10, at 382 ("AlUiough [state court decisions on marriage equality] are, as a matter of legal doctrine, irrelevant to die interpretation of the federal Constitution, state court opinions about state law are venues widiin which national values are continually contested and reshaped.").
284. See 2004 MT 390, ¶ 1, 325 Mont. 148, 104 P.3d 445.
285. Seeid. ¶ 31.
286. Id. ¶ 15.
287. See Gryczan v. State, 942 P.ad 112, 126 (Mont. 1997) (Turnage, C.J., concurring in judgment).
288. Snetsinger, ¶ 27.
289. See id. H 96-100 (Nelson, J., concurring).
290. See Complaint, Donaldson v. Montana, No. BDV-2010-702 (Mont. Dist. Ct. filed July 22, 2010), available at http://www.aclu.org/f1les/assets/2010-7-22- DonaldsonvMontana-Complaint.pdf.
291. Seeid. at 13, 16-19.
292. Seeid. at 12, 13.
293. Even beyond anti-sodomy litigation, the turn to state courts proved important to gradual progress on a number of state-law fronts. A decision on one question favorable to the gay-rights cause would build a foundation upon which to construct future cases. See, e.g., Patricia J. Woods & Scott W. Barclay, Cause Lawyers As Legal Innovators with and Against the State: Symbiosis or Opposition!, 45 STUD. L. POL. & Soc'Y 203, 219 (2008) (explaining how involvement in an earlier parenting case familiarized cause lawyers in the Vermont marriage litigation with the state supreme court, giving them die ability to gauge the proper time to bring die case). For instance, in Lewis v. Harris, die New Jersey Supreme Court found diat die exclusion of same-sex couples from die rights and benefits of marriage violated die state constitution, and in doing so, die court relied on earlier state-court decisions recognizing die parental rights of lesbians and gay men. 908 A.2d 196, 213 (N.J. 2006). Indeed, die court concluded diat "[t]here is something distincdy unfair about die State recognizing die right of same-sex couples to raise natural and adopted children ⋯ and yet denying those children die financial and social benefits and privileges available to children in heterosexual households." Id. at 218.
294. FLA. STAT. § 63.042 (2003).
295. See Cox v. Fla. Dep't of Healdi & Rehabilitative Servs., 656 So. 2d go2 (Fla. 1995) (affirming die appellate court's holding diat die adoption ban did not violate constitutional guarantees of privacy and was not unconstitutionally vague, but remanding the case for further proceedings to determine whether the law could withstand rational-basis review for equal-protection purposes); see also Leslie Cooper, Victory for Florida Family First Step to Ending Adoption Ban, Annual Update, AM. C.L. UNION (July 17, 2009), http://www.aclu.org/hiv-aids-lgbt-rights/annual-update-2009-parenting.
296. 358 F.3d 804 (11th Cir. 2004).
297. Seeid. at 818-20.
298. Lofton vSec, Fla. Dept. of Children & Family Servs., 543 U.S. 1081 (2005).
299. Telephone Interview with Nadine Smith, Exec. Dir., Equality Fla. (Apr. 7, 2009) (notes on file with author). The precursor organization to Equality Florida was founded in 1987 in the aftermath of the Washington, D.C. gay-rights march that was itself a response to the Bowers loss. The original Tampa-based local group eventually grew into a state-wide organization and became Equality Florida in 1997. Id.
300. See Lofton, 358 F.3d at 818.
301. Id. at 827.
302. See ROSENBERG, supra note t, at 10-15.
303. See Telephone Interview with Nadine Smith, supra note 263.
304. See Lofton, 358 F.3d at 807-08.
305. Telephone Interview with Nadine Smith, supra note 263.
306. See Gay Adoption Update, AM. C.L. UNION OF FLA., http://www.aclufl.org/ news-events/alert-archive/index.cfm?action=viewRelease&emailAlertID=i668 (last visited Jan. 12, 2011) (describing testimony to the Florida Senate committee considering the bill to allow adoption by lesbians and gay men: "Franke Alexander, 18, forced to leave his home, his brothers and sisters, and his foster fathers who had raised him since he was only a few months old, led the press conference and the committee meeting. He put a face on die message the coalition was trying to convey: This is a bill about children.").
307. Telephone Interview with Nadine Smith, supra note 263.
308. See Cox v. Fla. Dep't of Health and Rehabilitative Servs., 656 So. 2d 902 (Fla. 1995).
309. See Cooper, supra note 259 ("There were still some claims under the Florida Constitution that had not been decided by the Florida Supreme Court⋯.").
310. See In re Adoption of John Doe &James Doe, 2008 WL 5006172 (Fla. Cir. Ct. Nov. 25, 2008); In re Adoption of John Doe, 2008 WL 5070056 (Fla. Cir. CL Aug. 29, 2008).
311. See In re Adoption of X.X.G. &N.R.G., Case No. 3D08-3044, 2010 WL 3655782, at n (Fla. Dist. Ct. App. Sept 22, 2010).
312. See In re Adoption of John Doe &James Doe, 2008 WL 5006172, at *25
313. See id. at*20.
314. Id.
315. See Long, supra note 224, at 595 ("[S]tate high courts can and do serve as sites of contestation over deep national values.").
316. See In re Adoption of XX.G. &N.RG., 2010 WL 3655782, at *17.
317. Seeid. at*9-io, *17.
318. See Carol Marbin Miller, Ruling To Change Family Dynamic, MIAMI HERALD, Sept. 23, 2010, at Ai.
319. See Mary Ellen Klas & Mimi Whitefield, State Won't Appeal Ruling, MIAMI HERALD, Oct. 23, 2010, atl$3.
320. See id.
321. Id.
322. See ROSENBERG, supra note 1, at 427 (arguing that court-based strategies "limit change by deflecting claims from substantive political battles, where success is possible, to harmless legal ones where it is not").
323. See Scott Barclay, In Search of Judicial Activism in the Same-Sex Marriage Cases: Sorting the Evidence from Courts, Legislatures, Initiatives and Amendments, 8 PERSP. ON POL. 111, 116 (2010); see also BURNS, supra note 199, at 12 (explaining how legislatures have stepped aside for courts on abortion issues); GEORGE LOVELL, LEGISLATIVE DEFERRALS: STATUTORY AMBIGUITY, JUDICIAL POWER, AND AMERICAN DEMOCRACY 9 (2003) (discussing how legislators will empower judges when the legislators have conflicting demands).
324. See Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the Women's Movement, 61 N.Y.U. L. REV. 589, 641 (1986).
325. 550 U.S. 618 (2007) (holding that a female employee did not meet the filing deadline for her Tide VII claim because the 180-day period started when she first received her paycheck, even though she was unaware of the discrimination at the time).
326. See Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5. The law was the first act of Congress signed by President Obama after his inauguration. See Remarks by the President upon Signing the Lilly Ledbetter Bill, WHITE HOUSE (Jan. 29, 2009), http://www.whitehouse.gov/the-press-office/ remarks-president-upon-signing-lilly-ledbetter-bill.
327. See, e.g., Press Release, ACLU, ACLU Pushes for Passage of Ledbetter Fair Pay Act (Jan. 14, 2009), http://www.aclu.org/womensrights/employ/ 38331prs20090114.html ("The legislation, S. 181, the Lilly Ledbetter Fair Pay Act, would restore rights taken away by a 2007 Supreme Court case, Ledbetter v. Goodyear, which in most instances denies workers remedies for ongoing wage discrimination. 'The Ledbetter case virtually immunized employers from wage discrimination,' said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "This case ignores the realities of the workplace.'").
328. See Guinier, supra note 57, at 542; see also Timothy R. Johnson, Ryan C. Black & Eve M. Ringsmuth, Hear Me Roar: What Provokes Supreme Court Justices To Dissent from the Bench ?, 93 MINN. L. REV. 1560, 1581 (2009) (finding that Justices "use their dissents to signal litigants and other actors ⋯ that die decision is a bad one and someone must act to change it").
329. 855 N.E.ad 1 (N.Y. 2006).
330. Hemanda. v. Robles, LAMBDA LEGAL (Mar. 5, 2004), http://www.lambdalegal. org/our-work/in-court/cases/hemandez-v-robles.html.
331. Press Release, Lambda Legal, Lambda Legal Lauds Governor Spitzer's Bill Opening Marriage to Same-Sex Couples in New York (Apr. 27, 2007), http://www.lambdalegal.org/ news/pr/lambda-legal-lauds-governor.html (quoting Susan Sommer, Lambda Legal's Senior Counsel).
332. Marriage Recognition for Same-Sex Couples in New York: Advances Outside of the Courtroom, LAMBDA LEGAL, http://www.lambdalegal.org/our-work/ publications/facts-backgrounds/new-york-marriage-recognition-outside-courtroom. html (last visited Dec. 26, 2010) ("In addition to its litigation, Lambda Legal has been working in a coalition of groups since 2003, when Canada began marrying same-sex couples from New York, to win respect for those couples' marriages in the public and private sector.").
333. See Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009); Marriage Recognition for Same-Sex Couples in New York: Advances in Court, LAMBDA LEGAL, http://www.lambdalegal.org/our-work/ publications/facts-backgrounds/update- marriage-recognition-ny.html (last updated Feb. 3, 2009) ("On May 14, 2008, the governor's office directed counsel for all state agencies to comply widi the court decisions requiring respect for out-of-state marriages of same-sex couples. That directive sought enforcement of the law that had been clarified in diree cases, including two Lambda Legal victories. When the directive was attacked in court, Lambda Legal intervened, and the court upheld the directive in Golden v. Paterson.').
334. Most recently, then-Governor David Paterson introduced a marriage-equality bill in the state legislature, but the state Senate rejected the bill in a bitter and divisive vote. See Jeremy W. Peters, Governor To Submit Bill Legalizing Gay Marriage, N.Y. TIMES, April 15, 2009, at A20; Jeremy W. Peters, New York Senate Turns Back Bill on Gay Marriage, N.Y. TIMES, Dec. 3, 2009, at Ai.
335. eg. See Meyer & Staggenborg, supra note 93, at 1645 (explaining that "when abortion rights forces won in the courts, anuabortionists shifted the battle to Congress ⋯ and to state and local governments," and also "took the battle to the realm of public relations ⋯ and later to the streets"); see also ANDERSEN, supra note 145, at 174 ("[L]egal and political opportunity do not always operate in tandem with respect to a given movement claim and ⋯ disadvantages in one system do not necessarily translate into disadvantages in the other."); Pedriana, supra note 203, at 196 ("[Unfavorable legal decisions may reduce the likelihood that challengers will turn to courts and administrative agencies to achieve movement goals.").
336. See Meyer & Staggenborg, supra note 93, at 1648 ("The availability of additional institutional venues for action encourages movements suffering defeats to shift targets and arenas to sustain diemselves.").
337. See Schacter, supra note 94, at 1158; see also Eskridge, supra note 21, at 520 (arguing that Roe is not responsible for the pro-life movement since "any substantial success on the part of the pro-choice movement would have triggered a strong countermovement"); Guinier, supra note 10, at 130-31 ("[B]acklash is seen as a predictable or at least unsurprising dynamic in the ongoing conversation between the Court and the people."); Long, supra note 224, at 591-92 (explaining that a less court-centric view of law situates backlash to Supreme Court decisions as illustrative of "the mutually influential relationship between grassroots politics and Court decisions"); Post & Siegel, supra note 10, at 382-83 ("[B]acklash can be understood as one of many practices of norm contestation through which the public seeks to influence the content of constitutional law.").
338. Keck, supra note 7, at 17g, 180; see also Donald P. Haider-Markel, Alana Querze & Kara Lindaman, Lose, Win, or Drawl A Reexamination of Direct Democracy and Minority Rights, 60 POL. RES. Q. 304 (2007) (showing that minority groups are more likely to lose in the process of "direct democracy").
339. SeeBonauto, supra note 133, at 65.
340. For a detailed summary of Mayor Newsom's actions, see Sylvia A. Law, Who Gets To Interpret the Constitution^ The Case of Mayors and Marriage Equality, 3 STAN. J. C.R. & C.L. 1, 5-7 (2007).
341. See Proposition 22 Legal Def. & Educ. Fund v. City of S.F., No. 503943 (Cal. Super. Ct. 2004); Thomasson v. Newsom, No. 428794 (Cal. Super. Ct. 2004); Lockyer v. City of S.F., No. Si22923, 2004 WL 473257 (Cal. Mar. 11, 2004).
342. Brief of Appellant at 2, Proposition 22 Legal Def. & Educ. Fund v. City of S.F., No. 5̊3"943 (Cal- Ct. App. Oct. 25, 2005), available at http://www.nclrights.org/site/DocServer/20051024Prop2 2Prop2 20peningBriefAppeal.pdf?docID=1851;Cross-Complaintfor Declaratory Relief for Appellee at 5, Proposition 22 LegalDef. & Educ. Fund, No. 503-943.
343. See Lockyer v. City of S.F., 95 P.3d 459 (Cal. 2004).
344. See id. at 464.
345. See In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
346. See id. at 388-89.
347. See id. at 402.
348. Voters approved Proposition 8 by a 52% to 48% margin and thereby amended the California Constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized in California." CAL. CONST, art. I, § 7.5. For a discussion of die events surrounding Proposition 8, see Cummings & Nejaime, supra note 9, at 1293-303.
349. Jesse McKinley, California Ruling on Same-Sex Marriage Fuels a Battle, Rather Than Ending It, N.Y. TIMES, May 18, 2008, at A18.
350. Campaign Finance: ProtectMarriage.com-Yes on 8, A Project of California Renewal, CAL. SECY OF STATE, http://cal-access.sos.ca.gov/Campaign/Committees/ Detail.aspx?id=i302592&session=2CK)7 (last visited Jan. 12, 2011). Legal advocates assumed primary roles in using the decision for fundraising appeals. Mere hours after die court issued its ruling, Liberty Counsel's Matthew Staver had already begun personally fundraising in an effort to overturn the decision. McKinley, supra note 317.
351. See Cummings & Nejaime, supra note 9, at 1265-66 (describing the cooperation among LGBT-rights lawyers, legislative advocates, and legislators in drafting and passing domestic-partnership legislation in California).
352. See, e.g., ROSENBERG, supra note 1, at 425 ("[I]n contrast to legislative acts, it is easy to characterize a judicial decision as the result of a few 'activist' judges who don't share the public's beliefs and attitudes.").
353. Jay Sekulow, Same-Sex Marriage in CA by 'Judicial Fiat, 'AM. CTR. FOR LAW & JUSTICE (May 16, 2008), http://www.aclj.org/news/read.aspx?ID=2970.
354. E-mail from Gary Bauer, American Values, to Friends & Supporters (May 16, 2008, 4:43:13 PM), available at http://media.pfaw.org/Right/bauer-051608. htm.
355. Jan LaRue, Will Californians Submit', ONENEWSNOW (May 16, 2008, 9:45:00 AM), http://www.onenewsnow.com/Perspectives/Default.aspx?id=i18508.
356. Marriage Jeopardized After Calif. High Court Decision Unless Voters Approve Amendment, ALLIANCE DEF. FUND [hereinafter ADF, Marriage Jeopardized], http://www.alliancedefensefund. org/news/story.aspx?cid=45i6 (last visited Jan. 12, 2011).
357. Michael Foust, California Supreme Court Legalizes 'Gay Marriage,' BAPTIST PRESS (May 15, 2008), http://www.bpnews.net/BPnews.asp?ID=28057.
358. See ROSENBERG, supra note i, at 426 ("To be told by an electorally unaccountable judge that deeply-held principles are wrong may outrage those who hold competing principles.")
359. See id. at 425-26; Klarman, Racial Change, supra note 1, at 9.
360. E-mail from Gary Bauer to Friends & Supporters, supra note 322.
361. ADF: 4-I0-} Decision in Calif, a Vole for Nationwide Legal Chaos, ALLIANCE DEF. FUND (June 4, 2008) [hereinafter ADF, Nationwide Legal Chaos], http://www.alliancedefensefund.org/news/story.aspx?cid=4547.
362. Proposition 8 Arguments, CALIF. SEC'Y OF STATE 56 (Nov. 4, 2008), http://voterguide.sos.ca.gov/past/2008/general/argu-rebut/pdf/prop8-a-and-r.pdf.
363. See ROSENBERG, supra note 1, at 426 ("When judges make unpopular decisions, people may feel that their lives are being reordered without their input."); see also Eskridge, supra note 21, at 520 (explaining that in the wake of Roe, "people objected that the issue had been taken away from the democratic process").
364. ADF, MarriageJeopardized, supra note 324.
365. ADF, Nationwide Legal Chaos, supra note 329.
366. See Melissa Murray, Marriage Rights and Parental Rights: Parents, the State, and Proposition 8, 5 STAN. J. C.R. & C.L. 357 (2010).
367. Id. at 370 (footnote omitted).
368. See Proposition 8 Arguments, supra note 330, at 56
369. Id.
370. Id. at 57.
371. The television ads aired by the Proposition 8 campaign focused more heavily on die implications of same-sex marriage for schools dian on die "activist court" theme. While die first and last ads of the campaign included both messages, the three others focused exclusively on the schools theme. Compare Whether You Like It or Not (ProtectMarriage.com television advertisement Sept. 29, 2008), available at http://www.protectmarriage.c0m/ video/view/2 (First "Yes on 8" television ad), and Have You Thought About It (ProtectMarriage.com television advertisement Oct. 29, 2008), available at http://www.protectmarriage.c0m/video/view/9, with It's Already Happened (ProtectMarriage.com television advertisement Oct. 8, 2008), available at http://www.protectmarriage.eom/vide0/view/5, Everything to Do with Schools (ProtectMarriage.com television advertisement Oct. 24, 2008), available at http://www. protectmarriage.c0m/video/view/7, and Finally the Truth (ProtectMarriage.com television advertisement Oct. 28, 2008), available at http://www.protectmarriage.eom/video/view/8. For a more extensive discussion of the Proposition 8 ad campaign and its implications for the role of courts, see Cummings & Nejaime, supra note 9, at 1321-24.
372. One Proposition 8 television ad featured Robb and Robin Wirthlin, plaintiffs in Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), in which diey unsuccessfully challenged gay-inclusive school curriculum in Lexington, Massachusetts. See Everything to Do vrith Schools, supra note 340. Anodier Proposition 8 television ad explicidy cited Parker for the proposition diat "parents have no right to object" to instruction on same-sex marriage. See It's Already Happened, supra note 340.
373. 5i4F.3d87.
374. Press Release, Alliance Def. Fund, ADF Attorney To Debate Same-Sex 'Marriage,' Religious Liberty at UCLA Wednesday (Oct. 22, 2008), http://www.alliancedefensefund.org/news/PRDetail/1994.
375. Similar arguments were deployed by Christian Right advocates in support of Florida's Amendment 2, which defined "marriage" to exclude same-sex couples. Press Release, Liberty Counsel, Parents, Teachers, Clergy and Attorneys Hold News Conference About Threats to Parental Rights, Freedom of Speech and Religion (Oct. 22, 2008), http://www.lc.org/index.cfm?PID= i4ioo&PRID=742 ("When the Wirthlins objected to having their second grader's teacher read to the class 'King and King,' a cartoon book about same-sex marriage, school officials insisted that parents had no right to object because same-sex marriage is legal in Massachusetts. The Wirthlins joined other parents in a federal lawsuit against the school, which they lost.").
376. Chris Gacek, The California Supreme Court's Edict Redefining Marriage Will Affect All Americans, FAMILY RES. COUNCIL, http://www.frc.org/marriage/ redefining-marriage-will-affect-all-americans (last visited Jan. 12, 2011).
377. Proposition 8 Arguments, supra note 330, at 56.
378. See Vote Yes on Prop 8, Robb and Robin Wirthlin's Story, YOUTUBE (Oct. 20, 2008), http://www.youtube.com/watch?v=WLHWBWSaW-4 (featuring an interview with die Wirthlins); see also Chai Feldblum, The Selling of Proposition 8, GAY & LESBIAN REV., Jan.-Feb. 2009, available at http://www.glreview.com/ article.php?articleid=i40 (describing Family Research Council videos and television advertisements featuring the parents).
379. See Cummings & Nejaime, supra note 9; Feldblum, supra note 347 ("The primary argument advanced by Prop 8 supporters was that providing access to marriage for gay couples would reduce the rights available to others. They claimed that marriage recognition for gay couples in California would make life harder for parents in California who wanted to shield their young children from learning about homosexuals."); see also Matt Coles, Prop 8: Let's Not Make the Same Mistake Next Time, HUFFINGTON POST (Feb. 26, 2009, 1:48 PM), http://www. huffingtonpost.com/matt-coles/prop-8-lets-not-make-the-b-170271.html ("The idea that school-age children might be taught that they could be gay gave those conflicted voters a way to decide to vote 'Yes' without feeling mean about it.").
380. See THE THOMAS & DOROTHY LEAVEY CTR. FOR THE STUDY OF LA., THE LEAVEY CENTER FOR THE STUDY OF Los ANGELES 2008 EXIT POLLS OF THE PRESIDENTIAL PRIMARY AND NATIONAL ELECTIONS IN THE CITY OF LOS ANGELES (2008), available at http://www.lmu.edu/AssetFactory. aspx?did=32036 (finding that according to exit polls, Los Angeles voters with a child under eighteen voted 55% against and 45% in favor of Proposition 8, compared to those voters who are not parents of a child under eighteen who voted 75% against and 30% in favor of Proposition 8); Cummings & Nejaime, supra note 9, at 1321-24.
381. Press Release, Debra Bowen, Cal. Sec'y of State, Marriage-Equality Initiative Enters Circulation (Mar. 20, 2009), http://www.sos.ca.gov/admin/ press-releases/2009/dbo9015.pdf.
382. See Cummings & Nejaime, supra note 9, at 1323.
383. See Myths and Facts About the People's Veto of Homosexual Marriage Legislation (ID 1020), STAND FOR MARRIAGE MAINE, http://standformarriagemaine. com/?page-id=27i (last visited Jan. 12, 2011) ("A handful of politicians cannot be the only ones to decide what the definition of marriage should mean for the entire state of Maine."); see also Cummings & Nejaime, supra note 9, at 1324-25 (noting that voters overturned a bill enacted by the Maine legislature).
384. See discussion supra Part III.B; cf. Post & Siegel, supra note 10, at 377 (arguing that antiabortion activists "will use every available political means to press [their] constitutional vision on courts, even if progressives embrace constitutional theories that advise courts to avoid conflict").