Legalizing LGBT Politics: Litigation and the Construction of Social Movement Agendas

117 Pages·2014·1.26 MB·English

by  Gwendolyn Manriquez Leachman

UC Berkeley
UC Berkeley Electronic Theses and Dissertations
Title
Legalizing LGBT Politics: Litigation and the Construction of Social Movement Agendas
Permalink
https://escholarship.org/uc/item/3jr650nx
Author
Leachman, Gwendolyn Manriquez
Publication Date
2014

Peer reviewed|Thesis/dissertation
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University of California
Legalizing LGBT Politics:
Litigation and the Construction of Social Movement Agendas

by

Gwendolyn Manriquez Leachman

A dissertation submitted in partial satisfaction of the
requirements for the degree of

Doctor of Philosophy

in

Jurisprudence and Social Policy

in the

GRADUATE DIVISION

of the

UNIVERSITY OF CALIFORNIA, BERKELEY

Committee in charge:
Professor Catherine Albiston, Co-Chair
Professor Lauren Edelman, Co-Chair
Professor Heather Haveman
Professor Calvin Morrill

Fall 2014

Abstract

Legalizing LGBT Politics:
Litigation and the Construction of Social Movement Agendas

by

Gwendolyn Manriquez Leachman

Doctor of Philosophy in Jurisprudence and Social Policy

University of California, Berkeley

Professor Catherine Albiston, Co-Chair
Professor Lauren Edelman, Co-Chair

This dissertation examines the impact of litigation on a social movement’s dominant substantive
goals and message. While scholars have devoted substantial attention to the study of social
movement litigation, research in this area typically focuses on how social movements affect
substantive law, or more broadly, how a movement’s legal tactics bring about social change. By
contrast, my focus in this dissertation is on how litigation affects the social movement itself. In
particular, how does litigation as a tactic shape a social movement’s collective agenda? How does
it affect which perspective among possible competing visions comes to define the movement?

I investigate these dynamics through a case study of the lesbian, gay, bisexual, and transgender
(LGBT) movement from 1985 to 2008. The study involves three phases of original empirical
research, each of which investigates a potential mechanism that may privilege litigation over other
tactics in its ability to set the LGBT movement’s primary substantive agenda. First, I use a content
analysis of newspaper coverage of LGBT politics to determine which movement tactics have
received the most media visibility. Second, I perform a statistical analysis of LGBT organizations
to determine which movement tactics have been most associated with organizational survival and
stability. Third, I perform a qualitative analysis of a subset of those LGBT organizations to
examine variation in the strategy-formation processes used by primarily litigation-, lobbying-, or
protest-based movement groups.

The media content analysis revealed that litigation received more news coverage than any other
LGBT movement tactic, suggesting that litigation had greater visibility than other tactics. In
addition, the statistical analysis revealed that the movement organizations that used litigation had
greater survival rates than other types of LGBT movement organizations, suggesting that litigation
has been a particularly stable feature of LGBT politics. The qualitative analysis of LGBT
organizations revealed further insights into how litigation may influence the agendas of non-legal
movement actors. Whereas litigating LGBT movement groups proactively pursued preplanned
organizational priorities, protest groups formed their agendas reactively, focusing on the issues
covered by the mainstream media. This phenomenon appears to have diverted protest groups away
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from their original priorities and toward the issues that the media found newsworthy. Given my
findings that litigation coverage dominated news headlines, the processes identified here may
enable litigation to dominate protest activism as well. Taken together, these findings suggest that
the media visibility and stability of social movement litigation may contribute to the prominence
of litigation and cause legal goals to dominate the movement’s overall substantive agenda. I
describe this process as the “legalization” of a social movement’s agenda.

This dissertation makes a novel contribution to existing scholarship by exposing systemic
processes that may privilege movement litigation relative to protest, elevating the issues being
litigated to top movement priorities. Significant implications follow for theories of law and social
change. Focusing on litigation narrows a movement’s agenda because courts offer a forum for only
those grievances that can be translated into legal claims. This may be particularly problematic for
movements that base their legal claims in antidiscrimination law, which has become settled around
quite limited understandings of equality as formal access to equal opportunity and discrimination
as an intentional, individual harm. This interpretation not only denies remedies for the structural
factors most responsible for perpetuating inequality, it also places the focus on preventing
individual wrongdoing rather than producing substantive outcomes. Thus, when antidiscrimination
litigation comes to define an equality movement’s priorities, the movement may find itself
privileging issues with little hope of creating substantive social transformation.
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For Pennie and Tim Leachman.

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Table of Contents

Acknowledgements ........................................................................................................................ iii
Chapter 1: Introduction: How Litigation Shapes Social Movements ............................................ 1
Chapter 2: Visibility of Litigation: Media Coverage of LGBT Movement Tactics .................... 15
Chapter 3: Stability of Litigation: Survival of LGBT Movement Organizations ........................ 37
Chapter 4: Proactive Litigation, Reactive Protest, and LGBT Movement Agenda Setting ........ 53
Chapter 5: Conclusion.................................................................................................................. 88
References ..................................................................................................................................... 95
Appendix I: Organizational Founding and Failure by Year ...................................................... 106
Appendix II: Interview Guide ..................................................................................................... 107

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Acknowledgements

I am forever grateful to my dissertation co-chairs, Catherine Albiston and Lauren
Edelman, for their guidance, care, and critical engagement with my work. Your insights and
feedback have profoundly influenced the ways I carry out research, write, and see the world.
Thank you for helping me grow over the past nine years. I am also enormously grateful to the
other members of the committee, Heather Haveman and Calvin Morrill, for their careful
attention to my writing and for their thoughtful comments on numerous drafts of this
dissertation. It was an absolute privilege to have been mentored by this brilliant group of
scholars.
Several other U.C. Berkeley professors and staff have provided critical support for this
project. Kim Voss in the Sociology Department introduced me to the study of social movements
and provided indispensable feedback during my qualifying oral examination. Su Li at Berkeley
Law provided tremendous help with statistical modeling and software. Margo Rodriguez and
Yvette Cooper at the Center for the Study of Law & Society contributed crucial administrative
support.
I have been extremely fortunate to have received the support of several professors outside
of U.C. Berkeley. During the last two years of my graduate study, I received exceptional
mentorship from two UCLA Law professors whose work I had long admired, Laura Gómez and
Scott Cummings. It meant the world to me that these scholars would so generously share their
time and knowledge. Jon Goldberg-Hiller at the University of Hawaii and Douglas NeJaime at
U.C. Irvine also provided insightful comments on my work and informally mentored me over the
years. I am deeply grateful to Scott Barclay, my former undergraduate advisor, who first
encouraged me to pursue a Ph.D. and helped inspire the topic for this dissertation.
I am indebted to numerous foundations and institutions for making possible my graduate
studies, research, and dissertation. The University of California, Berkeley provided several years
of funding through the Mentored Research Award and Fellowship, the Dean’s Normative Time
Fellowship, and the Dissertation Year Fellowship. The National Science Foundation Dissertation
Fellowship made it possible for me to collect the vast amount of data that went into this project
and dedicate an entire academic year to its analysis. I am also indebted to the Center for the
Study of Law and Society for funding this research, and to the Berkeley Empirical Legal Studies
Program for the monetary support and stimulating intellectual environment it provided.
My growth as a scholar has been deeply shaped by the support of U.C. Berkeley’s Center
for Research on Social Change (CRSC) Graduate Fellows Training Program. It was an honor
attend the weekly fellows’ meetings with such a talented and compassionate group of scholars:
José Arias, Genevieve Negrón-Gonzales, Jennifer Randles, Sarah Lynn Lopez, Bao Lo, Kim
Richards, Timoteo Rodriguez, and Susan Woolley. I especially thank the CRSC’s Deborah
Freedman Lustig, David Minkus, and Christine Trost for their thoroughness and thoughtfulness
and for making an intellectual home for social-justice-minded scholars. To everyone at CRSC, I
thank you for sharing your commitment to social change and for making academia a better place.
The Williams Institute at UCLA Law School provided vital support during the final two
years of my graduate work. I sincerely thank Williams Institute director Brad Sears for his strong
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advocacy and encouragement. I am appreciative of Williams affiliates Andrew Flores, Nan
Hunter, Jenny Pizer, Nancy Polikoff, and once again, Scott Barclay and Douglas NeJaime, for
their constructive comments on my research. I sincerely thank my co-fellows at the Williams
Institute, Luke Boso and Jordan Blair Woods, for their intellectual and emotional support.
I need to thank the community of scholars and activists who have taken an interest in my
work and have helped me to succeed. For helping bring this work into existence, I thank the
LGBT and queer activists who generously participated in this research. For thoroughly enriching
my graduate school experience, I thank my graduate school colleagues and lifelong friends,
Ming Chen, Lynette Chua, Veena Dubal, Mimi Kim, Tamara Lave, Larisa Mann, Osagie
Obasogie, Pablo Ruiz, Alexander Rojas, and Shauhin Talesh. I particularly thank Brent
Nakamura for always being there for me—including in the filing of this dissertation.
Agradecimiento también a mis compañeros, Toni Mendicino y Fidel Dolorier, por su amistad y
apoyo.
Most important of all, I thank my family, without whose unconditional love and
unwavering support this project could not have been realized. Thanks to my “Glamma,” Ione
Cannon, for being my inspiration and confidant and for always encouraging me to reach for the
stars. Thanks to my sister, Gretchen, for letting me lean on her during hard times and for keeping
a smile on my face. Thanks above all to my parents, Pennie and Tim, to whom this dissertation is
dedicated. You two have accompanied me on every step of this long journey, learning with me
what academia is all about, sharing my joys and disappointments, slogging through my roughest
rough drafts, and helping me raise Santos. Without you, I could not have done it.

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Chapter 1
Introduction: How Litigation Shapes Social Movements

Litigation has played a central role in the strategies of the largest and most visible
contemporary social movements (Costain 1992; Handler 1978; Meyer & Boutcher 2007;
Rosenberg 1991). Particularly in the major identity-based movements of recent history, activists
have used litigation to advance their movements’ most visible goals. The desegregation
campaign in the early civil rights movement, abortion rights and wage equity in the 1970s
feminist movement, and same-sex marriage in the LGBT movement—each of these campaigns
was spearheaded by movement litigators (Tushnet 1987; Staggenborg 1991; Andersen 2005).
While there has been substantial scholarly interest in social movement litigation, research in this
area typically focuses on how social movements affect substantive law, or more broadly, how the
movement’s legal tactics bring about social change (see McCann 1994, Rosenberg 1991). By
contrast, my focus in this dissertation is on how litigation affects the social movement itself. In
particular, how does litigation as a tactic shape a social movement’s collective agenda? How
does it affect which perspective among possible competing visions comes to define the
movement?

There is reason to believe that litigation is not simply one social movement tactic among
many. Several studies, discussed below, have shown that litigation produces extralegal
advantages like publicity, recruitment, funding, negotiation power, engagement with political
elites, and public acceptance (Barclay & Marshall 2005; Coleman, Nee, & Rubinowitz 2005;
Hull 2001; Hunt 1990; Levitsky 2006; McCann 1994; NeJaime 2011; Paris 2001; Pedriana 2006;
Polletta 2000; Woods & Barclay 2008). The capacity of litigation to attract these advantages
likely has consequences not only for movement actors who use litigation by increasing their
visibility and standing, but it may also have significant effects for movement actors who use
extralegal strategies as well. When litigation takes the limelight, it may detract attention from
and deplete the resources of actors who use only extralegal strategies, marginalizing their
perspectives and claims. Alternatively, litigation in the limelight may rally non-litigating
movement actors around the issues being litigated. These potential effects on non-litigating
movement actors suggests that the use of litigation can be a mechanism for coalescing movement
action around the set of legal issues being pursued through movement litigation—the
“legalization” of a social movement’s political agenda.

It is crucial to investigate the potential for litigation to “legalize” a social movement’s
agenda, given the enormous implications for inequality and social change. When a movement’s
legal priorities come to define its agenda, the movement narrows the universe of possible
grievances to the identities and interests that fit with legal classifications and legal doctrine (see
Bower 1994: 1019). Yet, as critical race and queer theorists have documented, antidiscrimination
law tends to frame discrimination as an individual harm rather than as structural subordination
and generally favors remedies that provide formal, rather than substantive, equality. To the
extent that protest-based activists originally seek structural resolutions or substantive change,
legalizing the movement’s agenda may displace activists’ most transformative goals.

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