August 22nd, 2015

The Politics of Same-Sex Marriage: Public Opinion and the Courts


For better or worse, same-sex marriage has dominated discussions of gay rights in recent years. Public opinion has shifted in a direction favorable to marriage equality, significant social movement resources have focused on preventing or attaining the right of same-sex couples to marry, and an avalanche of court decisions have come down. Panelists will consider public opinion shifts, which social groups favor and oppose same-sex marriage, how social movements have organized and networked for and against same-sex marriage, and the import of recent court decisions.


PAULA ENGLAND: I'm Paula England. I'm the president of the ASA. And I want to welcome you to the session on the politics of same-sex marriage, public opinion and the courts. And I'm going to tell you
our speakers and then I'll just let them come up sequentially so as to not waste time in between. I just need to mention that some of you have in the printed program, it said that Verta Taylor would
be with us, which I had very much looked forward to. Something - an emergency came up and she isn't able to be with us. She's fine. But - so we really regret that. But we are four wonderful people on
the panel. You're going to hear from Brian Powell at Indiana University, Gregory Lewis at Georgia State University, Katrina Kimport at UCSF and Michael Dorf at Cornell University. Our panel is
somewhat interdisciplinary, and I'm really looking forward to their perspectives. Please welcome our first speaker. [APPLAUSE]
GREGORY LEWIS: Thank you. I'm going to set the scene today by trying to do three - four tasks. I'm going to start out by reminding us what public opinion on homosexuality and gay rights was back 25
years ago. I'm going to show the patterns on all of these issues over a 25-year period. I'm going to switch the focus, then, to same-sex marriage and show first, how much opinion on same-sex marriage
varies by ideology, party ID, religion, race, sex, education and age, but also show that every group is substantially more supportive of same-sex marriage than they used to be. And I'm going to
finish up with showing strong, fairly linear age or cohort effects existing within every group. There, all right.
So when I first started studying Americans' attitudes towards homosexuality and gay rights 25 years ago, I was shocked at how negative the attitudes were. Three quarters of Americans thought that
homosexual sex was always wrong, and only 12 percent thought it was not wrong at all. Fifty-five percent thought that gay sex was morally wrong, and only 9 percent were saying that it was even okay.
Our allies at that time were people who did not care whether gay sex was immoral or not. At that time, over half of Americans still thought homosexual sex should be illegal, and 25 states still
criminalize homosexual sodomy.
And so obviously in 1990, same-sex marriage was pretty much unthinkable. I actually didn't run across this general social survey question until many years later, so I thought - I was using Yankelovich
studies from the early 1990's, showing about 27 to 31 percent support, whereas it was like 12 percent at the time I started studying this. The good news was that three quarters of Americans thought
that homosexuals should have equal rights in terms of job opportunities, though they didn't extend that to all occupations. Majorities opposed hiring homosexuals as doctors, as clergy and as high
school teachers, but the resistance was strongest for elementary school teachers. Sixty percent outright opposed hiring gay elementary school teachers, and only 33 percent supported it. Around the
same time, about half of Americans were telling the Pew Research Center that school boards should have the right to fire teachers who were known homosexuals. Luckily, about two thirds - nearly two
thirds of Americans thought it was okay for me to have my job, but I have to say that these numbers were low enough I did not regret waiting until I had tenure to start doing gay-related research.
The real good news, of course, was that support was already rising by 1990 and it's been rising steadily since. The easiest question get a positive response on has been whether homosexuals should have
equal rights in terms of job opportunities, that equal rights framing probably biased responses positively. But even so, in 1977, only 56 percent agreed with that statement. A similarly easy
question, was whether admitted homosexuals should be allowed to teach college or not. About 50 percent agreed with that statement in 1973; that rose to 84 percent - oh, shoot. So there was a - oh my
goodness, I'm on the wrong page - I'm sorry. So they raise 84 percent by 1996, and it showed no signs of a decrease during the AIDS epidemic scare of the 1980s. Support reached 87 percent in 1998,
and stayed stable until about 2010, has jumped, it's up to about 87 percent now. So we've seen an increase of 38 percentage points over a 37-year period. Obviously, there was much less support for
hiring homosexuals as elementary school teachers. But this question has seen the biggest increase in support. A 42 percentage point rise from 27 percent in 1977 to 69 percent in 2009.
Support for job rights for homosexuals was always substantially higher than acceptance of homosexuality, and acceptance of gay sex was stable or declining during the 1980s and the AIDS epidemic. So
about 15 percent said that homosexual relations were not wrong at all from 1976 to1980. Only 12 percent said that in 1987. We finally saw a jump around the time that Clinton was elected president,
and that rose fairly steadily since - it's up to about 47 percent now, which is an increase of 36 percentage points over a 40-year period.
The percentage thing that homosexual relations are morally acceptable has always been about 10 points higher and has been rising at the same rate. Okay. Support for legalizing homosexual sex has
always been higher than acceptance of homosexual sex, but as you can see, there's not been the steady increase in support for legalizing gay sex that there was for employment rights. And, in fact, we
saw a fairly large drop in support for legalizing gay sex after the 2003 Supreme Court decision overturning the remaining state sodomy laws. Since then, it's been rising fairly steadily, and we've
got about 69 percent support for same-sex being legal at this point.
Now, again, when I was first studying and for a long time when I was studying attitudes towards same-sex marriage, I thought the patterns were different. It was not clear that support was rising. You
can see a lot of fluctuation there. And of course, the Republicans put constitutional amendments against same-sex marriage on lots of state ballots in 2004. They were supporting the federal marriage
amendment. And support for same-sex marriage dropped fairly substantially between 2002 and 2004. I kept telling people we weren't really sure that support was rising a lot longer than I probably
should have. Looking back now, it's obvious that support has been rising steadily linearly at about two and a half percentage points a year since 2005.
All right, so what I'm going to do for the rest of my presentation is, I'm going to do some analysis of about 200,000 respondents to 155 surveys conducted between 1992 and 2014. There's major
variation in the number of people I have per year and there's that long period of fluctuation. So I'm simply going to divide the data into three periods, 1992 to 2007, 2008 to 2010, and 2011 to 2014,
and I'm just going to report the percentage of people in each group who said that they supported same-sex marriage. So for instance, 62 percent of very liberal respondents already said they supported
same-sex marriage in the 1992 to 2007 period. That rose 11 percentage points by the second period, and another five percentage points for the third period. As is obvious here, America is deeply
divided ideologically on the support for same-sex marriage. Liberals are about 40 percentage points more likely than conservatives to favor marriage equality, and the very liberal are about 60
percentage points more likely than the very conservative to do so. But the other point to see, of course, is that there's major increase in virtually every group. Moderates have seen the biggest
increases, a 25 percentage point increase across these three periods. But even the very conservative are seven percentage points more likely to support same-sex marriage in the third period than they
were in the second period.
Likewise, there's strong partisan differences. Democrats and Independents who lean democratic have the highest levels of support, and their support has been growing most rapidly. But even among the
Republicans and Independents who lean Republican, we've seen increases of 11 to 15 percentage points over this period. Jewish and non-religious respondents have always been the most supportive of
same-sex marriage, and evangelical Protestants have been the least likely to support it. Catholics and non-evangelical Protestants have been nearly indistinguishable across the entire period, and
they've seen an increase of about 20 percentage points. Even the evangelicals, though, have seen a rise of a dozen percentage points over this period.
Among women, we've seen rises of 20 percentage points or more within each racial or major racial or ethnic group, with Asian and Latina women being the most likely to support same-sex marriage. Men
are less supportive than women of the same race or ethnicity, but we've also seen 18 or 19 percentage point rises for each of the male groups. There are moderate educational differences; in general,
people who are better educated are more supportive of the marriage equality, and there's also been a faster increase among people with graduate degrees than among people who have not completed high
school. But the gap between them has only widened from 19 to 25 percentage points over this period.
Support has also risen throughout the country. I'm going to use - well, they've changed the colors on me a little bit. It was supposed to be a color wheel that went from red, which was less than -
which is now orange, dark orange, which is less than 20 percent, up through purple, which is more than 60 percent. And in 2004, there were only eight Northeastern states and the District of Columbia
were even 40 percent supported same-sex marriage. There was no state in which there was majority support, only about half the states had even 30 percent support for same-sex marriage in 2004.
By 2009, there were eight Northeastern states, including New Jersey now, where there was majority support and substantial numbers that had reached the 40 percent mark. By 2014, there are 13 states
where 60 percent support same-sex marriage, 30 states where support has - is majority status. Mississippi continues to stand out as the only state with less than 30 percent support, and there are
only six states now with less than 40 percent support for same-sex marriage.
Clearly a major part of what's going on with opinion change on same-sex marriage is age or cohort effects. People - 20-year-olds are about 40 percentage points more likely than 80-year-olds to favor
marriage equality. And in general, people are about six and a half percentage points more likely to support same-sex marriage than people who are 10 years older than they are. And so cohort
replacement, that is, younger people reaching adulthood and replacing older cohorts who is are dying off, has been a major part of the change in public opinion over the last 25 years. But clearly
support has risen so much in the last decade that we cannot account for that in terms of just cohort replacement. And in fact, if we compare people born within a certain decade over the three
periods, every cohort is at least 13 percentage points more likely to support same-sex marriage in the most current period than they were in the first period.
And so, basically I'm just going to show very quickly that there are major cohort effects within every group. It's slowest for Republicans, but it's actually fastest for Independents and people who
lean Republican. It's fastest for moderates who have gone from being sort of closer to conservatives to being closer to liberals. It's also increased fastest both for Catholics and for those born
since 1960 - actually, the cohort effect are stronger for evangelical Protestants and for other groups. Oddly, there's no age or cohort effect for Jewish respondents. There are cohort effects within
every racial or ethnic group, with maybe slightly faster rates of increase for Asian and Latino respondents.
So, in sum, we've seen dramatic changes in dramatic rises in support for same-sex marriage over the last decade. But these are in line with the kind of long-term rapid changes in acceptance of
homosexuality and support for gay, lesbian, bisexual and transgender rights that have occurred over the last 25 years. We've seen rises of 25 to 40 percentage points on virtually every question.
Every group is substantially more supportive of same-sex marriage than it was even a decade ago. Even conservatives, even Republicans, even evangelical Protestants who are the least likely to support
same-sex marriage, and are the ones whose attitudes have been changing slowest. Even they have seen increases, and even they show strong age or cohort effects, which suggest that the increase and
support for same-sex marriage is likely to continue at least in the immediate future. Thank you! [APPLAUSE]
BRIAN POWELL: Greg offered a very clear description of the changes in public opinion over time, and the demographic cleavages and changes over time as well. In this presentation, I focus instead on
the imports of same-sex marriage and the recent Supreme Court decision for public opinion. I speak from the vantage point of someone who's been studying public opinion regarding same-sex families and
same-sex marriage for approximately a dozen years, and someone who believes in the importance of public opinion; who believes that public opinion is both reflective of and a precursor of court
decisions, laws, and more broadly, social change. After the Supreme Court decision, one of my brothers asked me, what am I going to do now? And basically, his question is, well, what now? As if it's
think about. What now? What are the directions now in terms of public opinion, and what are going to be the consequences of the court decision and the changes in terms of legalization of same-sex
So there are three areas that I hope I'm going to be able to present in the next 17 minutes, that the first one is, what is the impact of public opinion regarding same-sex couples? Second, what are
the implications for public opinion of the LGBT population? And finally, more broadly, what are the implications of the changes that we have seen, the remarkably swift changes in public opinion on
same-sex marriage for social change and other public opinions?
Now, my brother thought it's over, and I think many of us, when it comes to people's views about same-sex marriage, believe that really is over; that we are not going to revert back and become more
conservative regarding the ideas of same-sex marriage. In fact, some research suggests that once you legalize same-sex marriage in a state, support for same-sex marriage increases even more quickly.
And my own research in which we interviewed people about, you know, their views about same-sex marriage and whether or not their views have changed and why, many of them have said people who are in
states that same-sex marriage was legal, they said well, I'm in support of it because it's legal. So in other words, it speaks to the constitute of nature of law, the impact that law can have on
public opinion. That, along with the generational cleavages that are so strong that opposition of same-sex marriage is literally dying off, were pretty optimistic that views about same-sex marriage
is going to follow the pattern of people's views about interracial marriage, which now has about a 10 percent opposition. Other commentators are not so sure, or other people would like it not to be
the case. And they believe that it's certainly possible for views regarding same-sex marriage to revert back, to become more conservative over time. Their argument basically is if we find a trigger,
something that we can rally forces about and against, then in effect, people's views can change. And so what we're seeing is, they're trying to find some case of possible harm.
Now, there are two possible cases of harm that people that some people have been talking about. One is the idea of religious freedom and the other is the idea of, what about the children? Regarding
religious freedom, we have the religious - we have - we have the religious - we have these laws that basically, states are trying to pass. They're basically saying that businesses can deny service.
And the arguments, and we've heard it, what about the poor baker who doesn't want to bake a cake for someone getting married? What about the photographer? And the argument that many people are giving
is that there is a real potential harm here, that people are losing their, quote, "religious freedom."
Now, my research team and I were very, very interested in this particular question. And so, my graduate students, [Landid Schnabel?], [Lauren Apgar?] and I collected data from the test program in
which we were able to do experimental survey questions on a national level with 2000 people. And what we did is, we gave each person one vignette. The vignette that's probably is closest - the most
one that would probably resonate the most is the case of the same-sex couple that go to a self-employed photographer, and the self-employed photographer basically says that he is not going to take
pictures of them for their wedding invitation because he is religious and he does not approve of same-sex marriage. So, we give this vignette and we ask people the question, should this person be
allowed to deny service, or should he be expected to provide service the same way that he would provide other couples?
Now, I should note that my expectation was probably colored by the fact I live in a little college town, you know, this little part - but it turns out - we look at the numbers - 63 percent - and this
is a national sample - said yes, he should be allowed to deny service. Now, before you say well, this is a really, really conservative group - it is not. In fact, the sample, the national sample, has
about 60 percent of the people in favor same-sex marriage, which is what we have at the norm. And of those people who said that they were in favor of same-sex marriage, half of them said yes, he
should be able to deny service.
We tried a different scenario. And in this scenario, instead of saying this person was a self-employed photographer, we asked the question, what about someone - what about if someone who works in a
chain store in which the owner of the chain store has policy saying that you cannot take pictures, you cannot serve same-sex couples getting married? This is very similar to the Hobby Lobby Supreme
Court decision. What you see here is, support goes down. Now, I think that makes sense, but it's down to just 40 percent. To me though, the most interesting question is the question of religious
freedom. In the first scenario and the second scenario here, the person says, I am religious and I do not approve of same-sex marriage.
But what if you take religious freedom out of the picture? What happens if the person says, I am not religious, but I do not approve of same-sex marriage. How much is it going to go down? How much of
the support is going to go down if it's really about religious freedom? It goes up. What we find is in this scenario, 68 percent, slightly more, not significantly more, but slightly more people say
yes, he can deny service. Now, this is a very interesting pattern, because what does this tell you? It tells you that the support in terms of refusal of service is not about religious freedom. It is
about, quote, "freedom," the idea that people should be able to do what they want. And in fact, in our open-ended interviews, open-end comments, we find that people were saying exactly that. At the
same time, they are expressing a great deal of faith in the economic system. They said, "He's going to go out of business. People should be able to protest. People should be able to boycott him." And
basically, there was support that the economic system is going to root out discriminatory behavior.
Now, this is all about gay couples. What about interracial couples? So our other scenario we asked was not about gay couples but it was about interracial couples. And what you find, same case, except
there's no longer a gay couple, it's a black-white couple and the photographer says, "I'm not going to take pictures of you because my religion says that I'm not allowed - my religion says I am not
allowed to" - is it nine minutes already? Okay. "I am not allowed" - okay - "I am not allowed to take - my religion doesn't favor this and therefore, I'm not going take pictures." What you see here
is a very interesting pattern. Once again, we see that 59 percent, a high percentage of people, say you can deny service. Now, if you asked people - so what we have here is, this is not really about
gay issues here. This really is about this notion in American culture of freedom. So it's not about people being hurt because of gay couples, but people being hurt, period, on it.
Next issue - same-sex parenting. Now, we know there's been a huge amount of research and public discourse regarding the question whether children from same-sex couples fare well, fare worse. And we
know that there have been, in fact, there are people in this room, myself included, who have been involved in this debate. And the ASA has been very involved in presenting the case of where the
research is on this topic. I'm not really interested right now in the research on the topic, but public opinion on it. If support for same-sex marriage is going up, and if we have a clear majority of
people in favor of same-sex marriage, what about people's views about children?
From the general social survey, this is from 2012, they asked the question whether or not two fathers, they also asked about two mothers, can be as good at parenting as male-female parent couples?
What you see here is a remarkable split. Forty-four percent, in effect, say yes, 45 percent say no. The remainder are in between. This is a think - this points to one avenue, I believe, in which
people who oppose same-sex marriage can possibly be able to persuade people about potential harm. And this is one area we're going to have to look through over time. A comparison point, single
parenthood, asked the same question, but asking the question whether single parents can be as good as two parents. And what we see here, in effect, is a similar split along the way. If you're
interested in international differences, the ISSP has the same questions from 2012 as well. And Catherine Bolzendahl and Simon Cheng and I are doing some research on this. I'm not sure how well you
can see this, but this is some 30-some countries, and from the highest support, Iceland, to the lowest support, being Lithuania, China, Latvia and Russia, or in other words, if you want to think
about the map compared to Greg, you think of Lithuania as Alabama, China is Mississippi, Latvia is Tennessee, and Russia is West Virginia. And of course, Iceland, then, must be Vermont or
Massachusetts, here is where the United States is. So, in terms of the ISSP, the United States still is fairly high on this. The question, I guess, in the future, and what we're going to have
monitor, is how are people's views going to change regarding same-sex marriage? And my guess is, especially with legalization, especially with the notion that parents are going to -the parents are
going to now be legally parents and going to be a part of a legal marital family, I suspect we're going to see a great deal of change on this.
Third point though, is not about -is, what's going to happen in terms of people's views about same-sex couples as family? And this is something I've been studying for a long time with Catherine
Bolzendahl and Claudia Geist and Lala Steelman. And we asked the question in 2003, and we followed it through several other years, whether or not a same-sex couple without children would count as a
family. In 2010, 33 percent of the people said yes. What happens if they're married? Fifty-nine percent. What are the implications? Same-sex marriage is going to give people the opportunity to
reframe their views about whether or not same-sex couples counts as a family. And this is an exciting change. But there's a flip side to this as well. And the flip side is, what about people who
decide they don't want to get married? In our interviews, we found people who said that a cohabiting heterosexual couple did not count as family, but a gay couple that was not married did. Why?
Because gay couples couldn't get married. One interesting question in terms of public opinion is whether or not now, with same-sex marriage, will cohabiting same-sex couples lose their legitimacy
even more, lose their authenticity as family even more?
Second question. What about public opinion by the LGBT population? Now, this, I think, is a key question. This, I think, is a really interesting question that not many people here in sociology have
studied. But Greg Lewis, Ken Sherrill, Patrick Egan and quite a few other political scientists are studying the question. What are the views of the LGBT population? Not just about same-sex marriage,
but just in general?
One question you can ask, and we used the GSS to look at this, is how do people define themselves; whether as being conservative, liberal or moderate? Now, to give you perspective before I show you
the results on this, if you - the difference is for other groups. For example, for example in terms of education. People are with a graduate degree are the most liberal in terms of their
self-definition. And that's 40 percent of graduate students say that they are liberal. I suspect if we did sociology, we might have a higher figure, but 40 percent is really high. For heterosexuals,
if you look at the blue at the bottom, 26 percent say that they're liberal. For bisexuals, 45 percent say they're liberal. For gays and lesbians, 59 percent say they're liberal. We looked at all
these different socio-demographics. And this group is, indeed, by any standard, overwhelmingly the most liberal. Now here's the question, though, I want us to think about. Many people have been
arguing, many people in the gay community have been ambivalent about the change in same-sex marriage. They're certainly pleased about the legal status that is occurring. But they wonder what is going
to happen to the gay community? The question that I think we're going to have to study in the future is, what's going to happen in terms of the gay community now that they have legal rights to get
married? Will they, quote, "assimilate," become more mainstream and lose their liberalism? That's a question that we sociologists will need to study in the future.
The last point I want to talk about is public opinion and social change. One of the things that Greg noted is there's been this remarkable, remarkably fast change in people's views regarding same-sex
marriage. We as sociologists, usually, when we see public opinion change, we realize how glacial it is. It is so slow. We talked about the stalled revolution in terms of people's views about gender,
how things barely, barely change. We think about changes in abortion attitudes, barely, barely change over a short period of time. But here is a change that is so fast. The question is, is this
something -the change in same-sex marriage, some signal of rapid potential change in political views in the future?
Now, it turns out some things have changed fast. One of them is people's views about marijuana. In a paper - this is not my title, "Should Mary Jane be legal?" It is the title of the paper by two of
my graduate students, Landid Schnabel and Eric [Savelle?]. And they looked at people's attitudes over time, for GSS, looking at people's views about same-sex marriage and people's views about
marijuana legislation. Now, there's these questions - same-sex marriage was only asked in 1988 and then the early 2000's. But you see this amazing parallel and actually, a same rate of change over
time. Now, that is quite a remarkable change. The question then becomes, are we going to be seeing changes like this in the future? And it's my - it's not going to see it in gender. I don't think
we're going to see it in terms of attitudes about abortion. I suspect we're going to see it in other areas. I think what's going to happen is, because of technology, because of changes in socio - the
organization of social movements, we're going to be seeing some real shifts in public opinion that are going to be fast, and they're going to sustain themselves. One of them that I believe that's
going to happen is people's views around college education and the funding of college education, in a completely different line of research. I have been looking at people's views about who should be
responsible for funding college? Should it be parents? Should it be the government? Should it be students? And between 2010 and 2015, there's been a huge increase, still not the majority, of people
saying it is the government's responsibility. I think there's - I'm suspecting that this is going to be something that's going to continue to change over time.
Okay. What now? I just talked about a few possibilities of change in public opinion. But there are many other possibilities we can look at in the future. For example, will people's views about
informal rights, public displays of affection - will that change over time? Will people be able to look at wedding announcements in the newspapers and not have a second take when they see pictures of
same-sex couples? Are people going to change their views regarding what should be included in school curriculum? My colleague, Oren Pizmony-Levy, for example, is looking at that very issue.
What about household division of labor? Will people's views about household division of labor change? We have clear views regarding women and men in terms of public opinion. What happens now with two
men and two women, and how will we be able to use that information to partition the effects of gender, sex and age? There are several other factors, but as I see my time is going down, just to wrap
up, in thinking about my talk, I imagine my brother, if he was here, would say I'm overthinking, and that we should not be thinking all these different issues. And I think on one level, he's right.
These are important topics, important challenges for us to think in the future. But the same time, I want us to end by really thinking about what a remarkable change that has occurred, not just in
public opinion, but the legal landscape and simply the availability of the Freedom to Marry for - in the United States. Thank you! [APPLAUSE]
KATRINA KIMPORT: Hello. Thank you so much for coming today. It's a real pleasure to be part of this panel.
I want to pick up on, actually, the last thought that Brian left us with, and pause for a moment and just note that we're in a moment that 10 years ago seemed impossible. Right now, there is a
constitutional right to same-sex marriage. Lest we forget, this is a very big deal. And in some ways, it seemed like it happened in a blink of an eye. In my time today, I want to underscore just how
dramatic a change we've witnessed and maybe even participated in. And I also want to highlight the central role of social movements in realizing this change. This moment was not inevitable. It feels
like as we see that graph moving ever quickly towards higher rates of support for same-sex marriage, it feels like this is something that's going to happen. But this is not a progression of natural
rights. This is not an opening in an obvious sense that would have happened without the concerted efforts by social movement actors and organizations. In fact, I'm going to argue, with support from a
number of scholars already in the literature, that this moment that we're seeing today came about because of the social movement actions of the gay and lesbian movement and its counter movement, the
religious right. By deviling into the dynamics between these opposing movements, we can better understand how same-sex marriage came to enjoy the phenomenal success it has. I pause it, too, that
examination of the campaign for marriage equality can tell us something about what makes for success in a social movement today. And in particular, I suggest we can gain insight into what frames are
currently resonant, and I will somewhat gingerly offer some predictions about what we might see next from the LGBT movement, and the religious right.
So I have argued in my work that although same-sex marriage - well, I've argued that it burst into the public consciousness in 2004 with the San Francisco weddings. Others have placed the emergence
into the public consciousness in 2003, 2004 based out of Massachusetts, roughly the same time period. But it is inaccurate to couch these as the beginning of activism around marriage for gay couples.
In fact, as early as the 1970s, same-sex couples have approached county clerks to request marriage licenses. Largely, they've been denied, prompting legal challenges which have generally been
unsuccessful, with the notable exceptions of sort of alternatives to marriage in terms of civil unions and domestic partnerships. Activists have sporadically engaged in protest actions designed to
highlight the way that same-sex couples are excluded from marriage. For example, as part of the 1987 march on Washington for gay and lesbian rights, there was a mass wedding in front of the IRS
building. And throughout this time, same-sex couples have privately recognized their commitments to one another in the non-legal commitment ceremonies. Meanwhile, as all of this is happening, there's
been little to no engagement by the mainstream LGBT movement organizations. This is both a strategic and ideological choice. Strategically, movement organizations were worried that there was too
strong an opposition in the form of the religious right, and similarly that other issues, such as employment non-discrimination, were far more pressing. Ideologically, as Brian alluded to, there's
been a number of debates within the queer community about whether or not marriage is an appropriate priority. Will pursuing marriage be an assimilation of school? Will it privilege the already
privileged? The so-called "good gays" by giving them rights in addition to the ones they already enjoy, and further marginalize the so-called "bad gays," the ones who can't or will not get married?
And yet, marriage clearly made it from this grassroots interest into a social movement claim. In some ways, this achievement was accidental. It was not result of intentional or purposeful action on
the part of the LGBT movement. In fact, marriage as a movement goal came in response to coherent opposition. As Tina Fetner has argued, the religious right had an outsize response to those isolated
grassroots efforts for same-sex marriage I mentioned before. They were the ones who pushed the anti-marriage agenda. I'll make them very big. And at the moment in the 1990's, as they were responding
to these isolated grassroots interests, they had the upper hand. In a literature view by Amenta et al, that surveys the literature on social movement successes, they find that there are three central
occurrences that happen in social movements and social movement organizations that point towards success. One of them is organizational strengths, another one is strategic innovation, usually in the
terms of framing and tactics. And finally, a receptive political climate. In the 1990s, the religious right had all three. And I should also mention its deep pockets didn't hurt in any way, either.
Dora [Fentero?], Michael, who you will be hearing from soon, have described the rights action this way as an anticipatory countermovement. They worked to get marriage off the table before it was even
on the table.
But as the religious right sought to avert the possibility of legal same-sex marriage, a funny thing happened. They created their own opposition. By focusing on marriage and explicitly tying an
anti-gay animus to marriage, they were the ones that made marriage the issue. They were the ones who moved from it a peripheral grassroots personal interest to the broader set of the agenda of the
LGBT movement.
But that's not the whole story. It's not enough to have a grievance, it's not enough to have that grievance become a claim. You need a lot more in order to have a movement, and even more, to have a
successful movement. So while the religious right helped make this move from grassroots to movement agenda, it was the combination of a coherent network of organizations, a robust collective identity
and, of course, that percolating grassroots interest that helped mobilize for marriage.
So in terms of organizations, these are the same organizations that initially did not place marriage on their agenda. But as soon as the religious right forced it upon them, they engaged in the issue
and mobilized quite quickly. And, in fact, they were very successful in mobilizing. Similarly, the decades of marginalization, the AIDS epidemic, threats of violence as well as community-building
activities, such as pride parades, had fostered a coherent LGBT identity, a strong constituency that could be mobilized for marriage.
And third, as I've noted, the claims for marriage resonated with the grassroots constituency that was interested in marriage. [Kathy Hull?] and [Timothy Ortal?] have found that ordinary LGBT
constituents wanted marriage and they wanted the movement to advocate for marriage. So if we want to think about that queer critique of marriage, the concern that the already privileged would be
reprivileged, it's important to highlight that many of these constituents who were interested in marriage would not fit the definition of the already-privileged. Many of those who passionately wanted
marriage were not privileged in that conventional sense, they were marginalized in ways that made it unlikely for them to be assimilated, were marriage available. So it's worth talking about this in
a little bit greater depth.
So while some would frame marriage as a gateway to full equality for LGBT bodies, it also has very practical benefits. So I've argued in my book, Queering Marriage, that individual gays and lesbians
have acknowledged and recognized that even if marriage doesn't usher in full-fledged equality, it still has some pretty good benefits; among them, the legal benefits. The value of the off-cited 1138
federal benefits that come with the status of marriage cannot be underestimated for individual couples and their families. People I spoke with highlighted how legal marriage could ensure that they
could visit a partner in the hospital, likely a concern that's the legacy of the AIDS epidemic. They talked about how it would enable them to seamlessly adopt a child they parented but were not
genetically related to. Similarly, gays and lesbians I spoke with embraced marriage for its cultural benefits. Marriage offered them legibility as a family. Access to terms like, "spouse," "wife,"
"husband" - these have cultural resonance. They help communicate the status of your relationships to others. They help communicate to school officials. They help communicate to neighbors and to
coworkers. And finally, of course, access to marriage represented access to a standard rite of passage in contemporary society. Jeffrey Weeks positioned this as the appeal of being ordinary.
I find that these concerns were heightened for subgroups, particularly LGBT women. To date, women have disproportionately taken advantage of access to marriage, marrying at a rate of almost two to
one, when marriage has been available. Some of this can be attributed, I've argued, to the legacy of the lesbian feminist movement, which had a pointed critique of marriage. Thus, people who had
participated in the lesbian feminist movement already were aware of the patriarchal construction of marriage, and how potentially access to marriage as a same-sex couple pose an opportunity to
challenge that patriarchal meaning, and potentially even queer marriage itself.
A second reason for the pattern, the gendered pattern, I argue has to do with parenthood. To become parents, same-sex parents, same-sex couples have to have an interaction with what can broadly be
considered "the system." You have to use legal strategies to secure and protect parental rights, things like getting your name on a birth certificate, concerns about inheritance, protecting parental
rights in the case of a death or a breakup - all of these things have been extensively documented as vulnerabilities of same-sex couples and families. Culturally as well, as Brian alluded to in his
work, ideas in marriage and family are closely tied to parenthood.
So this has made same-sex parents, I argue, acutely aware of how and why marriage matters. Marriage affords protection and safety, it removes some of those vulnerabilities, and it complicates
critiques of same-sex marriage as just extending privilege. This is a gendered issue, and you'll note that I've been selective and - oh, it's down - for now, this is a gendered issue because lesbians
are much more likely to have children than gay men; not because of a lack of interest, but largely likely because of biological availability and the social comfort with the idea of two women raising
a child, which is higher than the idea of two men raising a child. So even if lesbians outnumber gay men as parents, I think we can probably assert that the parental motivations for marriage are not
restricted to lesbian families.
What's also interesting to think about from a social movement's perspective is that when you have a group such as this, this highly mobilized and in tune to marriage, this is an anomaly. In most
social movements research, the group that has the lowest biographical availability are parents of young children. These are people who don't have extra resources. They don't have extra time. They are
unlikely to participate in social movement issues, and yet they came out in full force for marriage. This is probably a piece of the advantage that the marriage equality movement was able to build
I want to talk about a few additional features that I believe contributed to the LGBT movement's success. So I've talked about things that we expected to matter, and these are some things that,
looking back in hindsight, we can better understand have affected the success of the movement. So first, same-sex couples had access to a great way of visualizing their claim. Wedding imagery.
Getting married or trying to get married and being denied became a way of communicating their desire. As Taylor and colleagues have argued, it was effectively a social movement tactic. Here are two
of the most famous marriage equality advocates getting married in San Francisco in 2004. This was also a very clever tactic. It drew on the immense cultural resonance of marriage is about love and
commitment, and is about positive emotions. Scholars have pointed to the way that leveraging emotions can be a successful way that social movements can make their claims. There were other benefits to
this action. To say that the media loved the spectacle is an understatement. And with the images of the weddings, the LGBT movement gained access to coveted media attention, something that social
movements chronically struggle to attain. And this offered direct inroads into the hearts and minds of ordinary Americans.
Second, the marriage equality movement had access to a very potent frame to accompany this spectacle; equality and love and commitment. This frame leverages the association of marriage with family. It
enables access to those emotions I discussed. What it is, as Holly McCammon has argued, is the appropriate pairing of a tactic and the context, and that bodes very well for social movements. So as an
example, the images in this slide are stills from the 2008 courage campaign viral video that was made in response to the passage of California's Prop 8. This is a very long sentence; it's a
complicated setting, but you'll get the idea. Prop 8 was set to - there was a prospect after Prop 8 was passed that 18,000 same-sex marriages would be annulled. The courage campaign video, in
response to this crisis, had a very simple plea: "Don't divorce us." So if you look at these images, they aren't your stereotypical protestors. They aren't the feared gays and lesbians out to spread
their deviants, and up in society, they are families. I should note that it's not simply important that this frame was successful. It's worth spelling out what frame advocates did not use. They did
not forward a rights claim. And this is not the marriage rights movement; this is the marriage equality movement. And actually, this is a recent shift. This is not a sort of, you know, pin the tail
on the donkey with throwing and seeing which frame sticks. Advocates for marriage in the 1990s had used the civil rights frame, and it was a total dud. So what we may be witnessing is something about
the way that marriage as a civil right just doesn't resonate, but it may be that we're witnessing the waning resonance of the rights master frame.
So recent losses and other movements that have emphasized rights, voting rights, for example, comes to mind, suggests that we should probably be on the lookout for a new master frame, perhaps one that
mobilizes this idea for love and commitment in idealized in an individualistic goal, rather than the broader collective goals. Marriage equality was also the beneficiary of extra movement support in
the form of organizations and funding. And we also have to acknowledge the legal opportunities structure in the form of courts receptive to the pro-marriage argument. There were several lower courts
that offered promarriage decisions, but Justice Anthony Kennedy deserves special mention. He's penned the majority opinion in all of the cases related to same-sex marriage, and always with a slip
five to four majority.
So all of these features fell into place over the last decade and suddenly, that LGBT movement that had been so outmatched by the religious right was not the scrappy under-resource movement, but it
was well-resourced and well connected. In 2012, yet another piece of the puzzle fell into place in the form of the political - favorable political climate. Now, with Obama saying that he had evolved
in his position on same-sex marriage, the LGBT movement had all of the advantages that scholars have pointed to that lead to movement success. You probably did not expect a title like this in a slide
on this presentation, but it's important as scholars that we don't cherry-pick only successful social change moments. For the LGBT movement, the 1990's were a string of political defeats. This is the
time of DOMA, losses in Hawaii, the dubious "Don't ask, don't tell" policy in the military. But it was in this moment, as Kathy Hull has found, that even as the LGBT movement was doubling down on
talking about marriage in terms of rights, that there was this emergence of alternative frames, including the love and commitment frame that we have seen in the last decade being so successful.
Attending to this idea of defeat and its importance also prompts us to ask what opponents of marriage and LGBT rights will do now. How will they react to this moment of defeat? What gains will they
learn? I'm not really in the business of making predictions, but I will offer one. Just because marriage is now legal, the religious right is not going to go away. Movements, and especially
counter-movements, who have suffered a loss and who are desiring to preserve the status quo don't simply go away. They may take a number of different approaches in their effort to constrain access to
marriage, including the religious freedom laws that Brian has discussed. We may see these laws deployed not just in terms of individuals, but also as have religious conscience laws and abortion being
used not just for protecting individual sensibilities, but by employers to constrain the actions of employees.
For LGBT advocates, as Bernstein and colleagues have argued, what happens next will depend on which exit frame dominates. Is it Love Wins, or More Than Marriage? Will there be complacency or momentum?
Will the movement be cautious or ambitious? Marriage equality is a win, don't get me wrong, but inequality persists. We have some evidence of what the LGBT movement is interested in pursuing next.
Current messaging is focused on broad non-discrimination protections and transgender rights. Scholars will be paying close attention to if and how advocates can leverage their marriage equality
success into future wins for LGBT people. Thank you! [APPLAUSE]
MICHAEL DORF: So first of all, thank you for giving up your lunch hour, except those of you who are leaving, [LAUGHTER] and special thanks to Paula for inviting me. I'm not a sociologist. I don't
even play one on TV. I'm a lawyer and law professor. I am quite interested in same-sex marriage and, more broadly, in the relation between law and social change. But I come at it from a lawyer's
perspective. Before getting to that, though, I was asked to talk a little bit about some of the legal nitty-gritty of the Supreme Court's decision in June in the same-sex marriage case. And I'm going
to try to tie that to some of the broader themes that have been discussed so far on this panel about the relation between constitutional decision making, law more generally and public opinion and
social movements.
So just to give a brief overview, in the Obergefell case, right, that was the name of the lead case; there are actually four consolidated cases, right, we had the question, as I put it when the court
took the case, not whether the court would grant a right to same-sex marriage, but how. That is to say, by the time the case got to the U.S. Supreme Court about eight months ago or so, it was clear
that the court was going to find a right to same-sex marriage. Now, why did we know that? Well, we knew that for two reasons. One as a matter of public information. Simply in October of last year,
the Supreme Court denied review of numerous cases in which lower courts had found a right to same-sex marriage. The consequence of that denial of review was that thousands and thousands of couples
got married. People who had been victorious in lower courts but had the judgments stayed now were able to get married. And that meant that it was going to be very hard, and at least cruel, for the
Supreme Court later to say, oh, those marriages don't count, and to unmarry them, or divorce them, as you saw in the Prop 8 story. So, the Supreme Court would not have let those cases stand if the
justices thought there was a realistic chance that when they took the case, they would then reverse and find no right to same-sex marriage. And so when they denied Cert in those case - "Cert" is the
technical legal term for review - when they denied review in those cases, they foreshadowed that eventually, they would find a constitutional right to same-sex marriage. But it was unclear how they
would do it.
And they basically had three options. One was they could use what we lawyers call "conventional equal protection doctrine." The 14th Amendment, Section 1 contains a number of very important clauses,
one of which is no state shall deny to any person the equal protection of the laws. Now, what does "equal protection" mean? All sorts of laws classify people, treat some people differently from other
people, and so the conventional approach of the courts over the last 70 some-odd years has been to say that certain kinds of classifications are inherently suspect. Race is the primary example,
partly because of the history of the enactment of the 14th Amendment, and also because of our troubled history with respect to race. But there are others, of course, sex and so forth. And these are
called "suspect" or sometimes "semi-suspect" classifications. And the idea is that sexual orientation is like race, it's like sex, maybe it even is sex, we'll come back to that in a moment, and
therefore, laws that draw distinctions on the basis of sexual orientation need to be very closely scrutinized by the courts. And "closely scrutinized" means the state has to advance a very good
reason, and there are no very good reasons. There aren't even any rational reasons to denying right to same-sex marriage, as the courts ended up seeing it. So that was one possibility.
A second possibility was to rely on the so-called fundamental right to marriage. Right next to the equal protection clause of the 14th Amendment is another clause, the Due Process clause, no person
shall be denied life, liberty - deprived of life, liberty or property without due process of the law. And for many years, the courts have interpreted that liberty provision as having not just
procedural protection, but substantive protection. A [INAUDIBLE] lawyer is called "substantive due process," and that means that certain rights are very, very important, fundamental. One such
fundamental right is the right to marry. Loving Against Virginia, the anti-miscegenation case from the 1960's strikes down Virginia's anti-miscegenation law, in part on the ground that it draws a
racial distinction; but also the court says, this is an interference with the right to marry. People get to marry anyone they choose. They assumed the opposite sex, but you can't deny a person's
choice of a marriage partner on the basis of race. And so given that marriage had been recognized as a fundamental right in Loving and in two subsequent cases, that was another possibility.
Then there was the third possibility, which will I call the "animus theory," a line of cases from the Supreme Court says that even apart from the conventional doctrine of a heightened classification,
a law that draws distinctions or disadvantages people based on animus faith, what somebody has called a naked desire to harm a politically unpopular group, is invalid for that reason. The classic
case is a case in which Congress was motivated to deny food stamps to unmarried, unrelated persons cohabiting out of animus towards what the congressional record indicated were "hippie communes." So
from that, a long line of cases developed, including two of the prior important gay rights cases, in which Justice Kennedy, writing for the court, had said, "These laws that draw distinctions based
on sexual orientation are disadvantaging gay and lesbian people simply out of animus." Not quite hatred, but something like dislike, disgust.
Okay, and then finally, there was the possibility the court could strike down laws forbidding same-sex marriage on the ground that these laws are sex discrimination, which is already treated as
constitutionally suspect. The line of cases beginning in the 1970s says that states may not discriminate on the basis of sex, sex is enough like race that laws that do so are subject to heightened
judicial scrutiny.
Now, I was a little unsure about which course the court was going to take, and I figured I would hedge my bet. So here you have a copy - the cover of a brief - it's probably too small to be able to
read it, but if you see there, there's a list of constitutional law professors. I'm on the sort of carry-over from the third to fourth line, in which we urge the court to treat sexual orientation as
a suspect or semi-suspect classification, and scrutinize laws that discriminate on that basis with careful judicial scrutiny. And the reason we argued for that is we thought that it was important to
win this case, not just to win it, but in the right way. We thought coming down the pike will be all sorts of cases involving other forms of discrimination against LGBTQ Americans, and it was
important to establish a precedent that would not just get marriage, but that would be useful in attacking those other forms of discrimination, and winning the case on the basis of equal protection
heightened scrutiny would do that in a way that none of the other theories necessarily would. So I signed on to this brief, which was, they were listed in alphabetical order, but Jeff Stone of the
University of Chicago down the block was the primary organizer for that.
But you know, I'm cautious, so I hedged my bet. So I filed another brief. This was just me and Larry Tribe at Harvard, who was my mentor, and we wrote a book together many years ago, in which we
argued for a broad understanding of fundamental rights against a view that had been offered by Justice Scalia on many occasions, in which he said, "Well, you can't have a -when you define a
fundamental right, it's got to be with respect to the narrowest historical understanding." And so we had written basically an entire book attacking that idea, which Justice Scalia had laid out in a
footnote. So it's, you know, typical thing, academics write an entire book to disagree with one footnote written by somebody in the real world. But anyway, [LAUGHTER], in this brief, we advanced the
argument that in addition to ruling on the basis of the equality argument, the court could find on the basis of the fundamental right, because you didn't need to confine the kind of fundamental right
to marry to its narrowest historical understanding.
During the oral argument, there was a moment when it looked like Chief Justice Roberts might be sympathetic to that fourth theory, the sex discrimination theory. Here's what he says: He's asked - he's
talking to the lawyer for this case - he says, "Counsel, I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean if Sue loves Joe and Tom loves Joe, Sue can marry him,
but Tom can't. And the difference is based on their different sex." Why isn't that a straight-forward question of sexual discrimination? And that's a very good question. Unfortunately, Chief Justice
Roberts forgot that he had asked it, because by the time the case comes down, he dissents. And he and doesn't even address the question of whether the laws can be invalidated as sex discrimination.
But meanwhile, in a largely overlooked but extremely important development since the Obergefell case, the EEOC last month ruled that sexual orientation discrimination is sex discrimination under
Title VII of the 1964 Civil Rights Act. For those of you who think that's legal jargon, what that means is, the campaign for a federal statute forbidding discrimination on the basis of sexual
orientation in the workplace has been successful. It succeeded in the EEOC. Now, it's not a slam-dunk, game over yet, because that ruling is subject to appeal to the courts. It's possible that the
courts could say the EEOC overstepped its authority.
Interestingly, for those interested in inside baseball, there is a long-running debate in the Supreme Court about whether the EEOC is the kind of agency that is entitled to deference from courts when
it makes its rulings, and the leading champion of deferring to the court - to the EEOC - when it has a policy decision is Justice Antonin Scalia. And so, if and when the case gets to the - you're
wondering why, it's because usually the EEOC was taking a more conservative position. But he said it. Right? So if and when that case gets back to the Supreme Court, you could see a decision written
by Justice Scalia in which he says the EEOC may or may not be right, but we defer to them, and so, sexual orientation discrimination is illegal as sex discrimination in the workplace.
Now, if that happens, that, of course, won't solve everything, partly because we know that you can have law on the books, but different reality on the ground. Also because this is a construction of
Title VII, which is the Workplace Discrimination Provision, the Federal Public Accommodations law does not forbid even sex discrimination. I will allow a moment to let that sink in, right? That is,
if you go to your baker and you say, "I'd like" - not a wedding cake, let's say, "I'd like a cake for my daughter's birthday," and the baker says, "Oh, I'm not going to serve you because you're a
woman," the baker has not violated Federal Public Accommodations law. It's something of a mystery why that is. I've heard it explained that the liquor and restaurant industry wanted to preserve
ladies' nights, but I find it hard to believe that was a sufficiently powerful lobby to lead to this stain on the nation's Anti-discrimination Law. But in any event, that is a limit on the potential
effect of the EEOC ruling.
Okay. Back to Obergefell - well, as I said, Chief Justice Roberts did not end up siding with the sex discrimination rationale, but Justice Kennedy - by the way, for whom I was a law clerk a quarter of
a century ago - as pretty much everybody predicted, wrote the opinion. And he wrote it based on the fundamental right to marry with what I've called here a "soupcon of equality." So here is language
from the opinion. "If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once
denied. The Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians." Right? So the court is saying it's the fundamental right to marry, and
there is that liberty is informed by principles of equality. So, that is the holding, and of course then the question is, what are going to be its consequences? But before we come to that, I should
note something about the dissenters, right? So they worry that the sky is falling. I'll just summarize their dissents briefly: Chief Justice Roberts says, "Lochner, Lochner, Lochner..." 16 times.
That's a reference to one of the most infamous cases in Supreme Court history, a 1905 decision in Lochner Against New York, in which the Supreme Courts found that a law limiting the hours of bakers
to 60 hours a week was unconstitutional, essentially on economic libertarian grounds, and the court repudiated that during the new deal era, and ever since a dissenting justice who wants to say the
majority is doing something the dissenters think is terrible, says the majority is engaging in Lochnerizing. Usually they don't say it 16 times, but Chief Justice Roberts was very upset.
In addition, we have Justice Scalia, who basically freaked out. Here I will just - this is my favorite footnote of his opinion. He says, "If, even as the price to be paid for a fifth vote" - meaning
to get one of his colleagues - "I ever joined an opinion for the Court that began" - and then he quotes the majority's opinion, "I would hide my head in a bag. The Supreme Court of the United States
has descended from disciplined legal reasoning of John Marshall and Joseph Story to mystical aphorisms of the fortune cookie." All right, another way of saying, "Get off my lawn!"
All right, so in addition to freaking out, the dissenters were also very concerned about how to distinguish polygamy and incest. This led to all sorts of interesting discussion. One answer, obviously
enough, is that the burden on one's liberty in being told one can't marry a second partner is not so severe as being told one can't marry any partner, which is effectively what laws banning same-sex
marriages do to persons who are gay and lesbian. Another answer is the what I refer to as the "soupcon of equality," that is to say, putting aside questions of people who are - people who say
orientation - that there is an orientation of wanting to have multiple spouses, right? There is at least less evidence, and certainly less for the idea that this is an immutable characteristic. There
are administrative issues, at least with polygamy. But of course most importantly, right, from the external perspective, that is to say not from the question of, can you justify the decision as
someone who's going to write it, but someone observing the courts, right? The social movement for a right to incest and a right to polygamy - while I'm sure it exists out there, has had nothing like
the success that the movement for organizing for the right to marriage equality has, right? At least not yet, that's what I have there.
And here, it's an interesting comparison, would be the guns and the Second Amendment. In the 1970s, Chief Justice Warren Burger, this is Richard Nixon's Chief Justice, described the view that the
Second Amendment protects an individual right to firearms ownership as a, quote, "fraud on the American people." Yet about 40 years later, the Supreme Court recognized a constitutional right of
individuals to own firearms in two cases, the first involving a law from the District of Columbia and the second involving a law from the City of Chicago, all right? What happened? Well, what
happened was, there was a social movement, a social movement of right wing, largely rural, angry white men who demanded a right to guns. And they won. They managed - they had workshops, they had
whole academic papers. It was an organized - a very well-organized group in combination with, of course, strategic appointments. And that's how we got an individual right to gun ownership, in much
the same way that the social movements on the left have been able to advance their causes, right? So it's no mystery the real reason why there's not going to be a right to polygamy or incest in the
near future there is, there is nothing like that in terms of the social movement.
Okay, what do I have, about a minute or two left? So in this - in my tiny remaining time, I will just say a word or two about law and social movements, most of which is going to just sort of be a
gloss on what Katrina said. All right. So I come from a world in which people generally recognize that there is some connection between law and social movements, but they're not exactly sure what it
is, right? One view associated with a group of Germans goes by the name of Autopoieisis, that's Luhmann's term, all right, and the idea is that law and social movements are completely separate. Even
most traditional lawyers reject this as ridiculous. But there's another view associated with Joe Rosenberg at the University of Chicago, and made famous in his book, the Hollow Hope, that social
movements can influence the law, but that the law, that's at least in terms of judicial decisions, that's why I've represented it by a gavel, doesn't have any effect the other direction. The law
doesn't influence society. His answer to the question, Can Courts Bring About Social Change, which is the subtitle of his book is, no.
The conventional view, I think, is that there is feedback, right, the law influences society and society influences the law. And then, of course, the devil is always in the details. The one thing I
would add, and this is again something that Katrina alluded to, all right, which is that the - there is this - it's been long known by people who study social movements, including my Cornell
colleague Sid Tarrow, with whom I've done some collaborative work, that movements and counter-movements sort of tussle with each other. And you sort of heard that at the end of Brian's remarks,
right, and what we discovered when we interviewed a number of leading figures in the LGBT rights movement is that they were dragged to the marriage equality fight as Tina Fetner showed, and as
Katrina talked about, by the opponents, by this anticipatory counter-mobilization. And then by the grassroots.
And the final point I want to emphasize is that part of why you see this phenomenon happening is the decentralized nature of litigation in America. I have done a lot of work over the years with the
LGBT rights organizations, and for years there was total fear of getting to the Supreme Court too soon, right, at a time when the court would reject the right to same-sex marriage and thus lock in
that decision for potentially another generation. And they did everything they could not to get a case to the courts. They failed, because anybody can go out and hire a lawyer and bring a case. And
that's pretty much what happened. And it happened it worked out this way. So, obviously, this diagram itself is a vast oversimplification, but from the world in which I live, namely people who wonder
about the effect of law on social movements and vice versa, even that is highly complex. Thank you. [APPLAUSE]
PAULA ENGLAND: Wow, what a great group of presentations! So we're going to have some Q and A for those who would like to stay for it. We have 20 minutes. So the way we're going to do it is, if you
want to ask a question come forward to one of the mikes. We're going to let the - we can, kind of the panelists can kind of decide, you can address it to a particular person or just throw it out and
they'll decide who will take it, and I'm going to let them sit down while taking them. We'll start at the left, my left.
ANNE TAYLOR: So my name is Anne Taylor, I'm a student at the University of Colorado at Boulder. My question has to do with religious freedom and same-sex marriage, more so about the movement rather
than the specifics. Specifically, I just did some research on navigating sexual and religious identities at a Christian college, an evangelical Christian college, liberal arts school. And I'm
wondering, I'm noticing a stiffening amongst the kind of conservative evangelical thought about religious freedom at the college. And these students are kind of getting caught in the crossfire, and a
lot of the LGBT students are really suffering. I'm wondering if you can maybe contribute any thoughts on kind of the identity crisis that's facing a lot of Americans as they maybe support same-sex
marriage, but are finding trouble as they kind of grapple with their religious sense, especially when it comes to a legal perspective now that we have marriage equality, but also the idea of
religious freedom and kind of what that entails.
BRIAN POWELL: I was actually looking for a couple of quotes and it is not in this version of the talk. So one thing, I think the question you ask about this tension in terms - I think it's a very
strong tension. And I don't think it's just a tension that - you're talking about a particular group, but I think this is a tension that has existed for a long time. When my team started doing
interviews in 2003, it was fascinating the number of people who said, "I'm religious, but I want to be fair." And every time I heard that I said, "Oh, we're going to see some real change going on,"
because that was a clear - you know, it was clear. They understood that there was a tension, and many people were saying things like, "Well, ask me again next year and I'm going to have a different
answer." And I kept on thinking, oh, if I had some grant money, I could do that. But I think the point about the tension that you're talking about is parallel to where so many Americans have been,
you know, in 2003 to 2006 and turning around 2010. So I suspect that you're going to see people resolve that tension. Your sample, if you follow them years down the line, I suspect you're going to
see them resolve that tension and move towards a way to deal with this cognitive dissonance and move towards a more open view regarding the topic.
KATRINA DORF: I'll offer maybe a kind of a counter-example to that, because I could see it go actually in an alternative direction. So if we think about as a parallel to the religious freedom laws
would be the cousins in the form of the religious conscience laws that have been used to restrict access to abortion by saying that a healthcare practitioner does not have to be involved in abortion
care if he or she has a religious objection to it. And that's something that has expanded dramatically and frequently has nothing to do with religion, but just has to do with a sort of discomfort.
But on the ground, frequently healthcare workers in religious hospitals will still enact workarounds, right? So they might have been prohibited by their religion and even by their employment, but
they would work around from it. And we're seeing crack-downs, right, so it sounds to me like another thing you are seeing is a discrepancy, not just necessarily in an individual's - between what
they're interested in doing and what they feel like their religion tells them, but actually the representatives of that religious ideology shifting in the firmness with which they're going to enforce
that prohibition. And so I think you might see an interesting parallel, the Catholic bishops, for example, have pushed very hard to change and enforce, excommunicating people who are involved in any
way in abortion or contraceptive care. And so also that sort of institutional framework as that changes people's perspectives on the ground. So I think it's a really interesting question you are
grappling with, and we look forward to hearing what you find.
PAULA ENGLAND: Okay. Let's take a question over here.
ANGIE PARRONE: Hi. My name's Angie Parrone. I'm a doctoral student at University of Michigan, but I'm also a civil rights attorney, and I worked on the marriage cases at one the mainstream nonprofits
before coming here. And one thing that we found when we did these, I mean, they weren't scientifically rigorous studies, but we polled people, is the specific issue of people not identifying with
rights, the frame of rights and people feeling much more comfortable with supporting things if it was framed as a fairness issue. And I'm curious, you just alluded to this, Dr. Powell, and I'm
curious if you have found that the surveys are giving us freedom to really dissect that issue in a more nuanced way, because it's not just looking at whether someone believes in a specific right. Is
it necessarily going to get data, necessarily, that we want? Whereas if it's framed as, do you - if there's some sort of way to sort of capture it with the fairness language, that might provide a
different answer. So I was curious if you or somebody else on the panel had thoughts about that.
BRIAN POWELL: I think the fairness - I do think the fairness issue is framing things in terms of fairness, I think works pretty well, because the one thing, you know, when you think about people
changing their attitudes, you know, people made a lot of fun of Obama when he, you know, about when he talked about how he evolved. Now, setting aside the question whether he really evolved, you
know, it's not that people one day wake up and say, "I'm in favor of same-sex marriage." You know, they need some type of way to transition; they need to, in effect, evolve. And I think notions of
fairness are certainly one way for people to do it. Because I really think for most people, most people do not care about the issue as much as this room does. Most people, for most people it's, like,
"Yeah." Or, "No." And really it was like - and I will tell you that the difference was why, to switching to, why not? I mean, that's really what happens. And I think getting people just to make that
little transition, whether it's with words like getting people to think of fairness, or thinking of Freedom to Love, although the problem Freedom to Love creates, for many people, the - I'm
forgetting the name of the professor from Illinois, quotes "the yuck factor" in terms of people thinking about it. So people were actually talking about fairness, I think is a very effective way of
doing it.
MICHAEL DORF: Let me say one other point. You know, it's interesting, the Supreme Court case, of course, accepts the rights framing and it doesn't reject the equality framing, but it's sort of
secondary. The language that you see in all of Justice Kennedy's opinions on the LGBT rights cases is dignity. That's a word for him. It's a word he probably picked up because he's done a lot of
teaching in Europe where that is part of their constitutional tradition. That's not a term you see much, I think, in the public debate. But I wonder whether that would have any resonance.
PAULA ENGLAND: Interesting. Yes?
MICHAEL YARBOROUGH: Hi, my name is Michael Yarborough. I'm an assistant professor of Law and Society at John Jay College of Criminal Justice in New York. And I would like to ask you to reflect more
on what implications you see in the politics of same-sex marriage for the politics of marriage. More broadly, like, there was some allusion to things about gender norms within marriage and division
of labor, and those sorts of things. And also I was wondering about race and class politics of marriage around things like marriage promotion and welfare policy and so forth.
PAULA ENGLAND: Katrina, do you want to speak to that?
KATRINA KIMPORT: Sure. Yeah. So in my book, Queering Marriage, I argue that there is that open question. So if some of the question is, what does marriage do to gays and lesbians, what do gays and
lesbians do to marriage? And so I think that there's, there are possibilities there. Adam Green's work out of Toronto has found that you have gay couples tend to not adopt the same normative
restrictions around behaviors within marriage, offering sort of maybe an opportunity and opening, a proliferation of how relationships are structured, how division of labor within the household - you
know, this is something that will be fascinating to get to watch; how much it does change marriage. We know that marriage changes a lot, that there have been, you know, even in the last hundred
years, there have been several different phases about how marriage has been understood socially, as it's been increasingly decoupled from both financial responsibilities, decoupled from ability to
move within society. You can have a job without being married. You can own a home without being married. And also increasingly decoupled from family steps. You can have children without being
So I think we have some suggestions that there are possibilities that the presence of same-sex couples in marriage will continue to change the way that marriage is understood and enacted. Exactly how,
and how broadly that happens - we'll have to wait and see. I didn't speak, though, to the -
PAULA ENGLAND: Anyone else want to speak to that one, or should we go on? No. Next question. Thanks so much.
RICHARD WILLIAMS: Richard Williams, Notre Dame. I was at a talk here a few years ago where a Mormon lesbian was speaking, and she said she really wasn't all that crazy about same-sex marriage being
legalized, because she knew that as soon as it happened, her mother would hassle her to get married. And I can speak for my own daughter is basically, like, "Well, yeah, it's okay," but she just used
us a being a distraction from the really important issues that are facing gays. And I'm wondering if we just have, you know, is my daughter weird, or do we have good measures of how intense the
attitudes are on everything else pertaining to gays? Do we see changing attitudes? I mean, it's still the case that in most communities, sexual orientation is not a protected category. There was an
article in the New York Times about how a lesbian couple was denied an apartment because of their sexual orientation. So it's still in most of the country perfectly legal to discriminate on the basis
of sexual orientation.
So what do we know about, say, attitudes of the general public, and gays in general, and do we have any similar things on trends, or is the only thing anybody's been looking at is same-sex marriage?
PAULA ENGLAND: It seems like he didn't hear your talk -
PAULA ENGLAND: - but why don't you summarize a little bit now?
GREGORY LEWIS: So, yeah. I mean, basically, we have seen major changes, major increases in support for LGBT rights, and greater acceptance of homosexuality on basically every question that the
pollsters have been asking for 25 or 35 years. So I think it's definitely increasing across the board.
ARELLE KATRI: Hi. My name's [Arelle Katri?], I'm a graduate student at the University of Georgia. And some of the professors at Georgia did a study back when spousal rape was coming up in the 90s,
and found that states that had partial measures to protect women and people against spousal rape found it harder to get full measures later on. In kind of continuation with the earlier questions, do
you think that, going forward, it's going to be harder to get equal rights on other LGBT issues now that marriage equality has passed?
KATRINA KIMPORT: I think there's always a question when you have momentum about what gets lost. And I think - so I think there are two ways to answer your question; the first one is that I think
that's where many people were concerned about sort of maybe offshoots, like domestic partnership laws, or civil unions, that that would somehow satisfy enough of the advocates that you would lose
momentum and fail in mobilization. We did see that those were not experienced as equivalent among the gay and lesbian community, so you had [raids?] of people participating in those sort of marriage
lights, but nothing like what you saw once marriage was available. So, and I'm familiar with that work. It's an interesting question about how the marital rape phenomenon, if that is comparable, what
is similar about that sort of situation? I think that the way that Mary Bernstein and colleagues have thought to answer your question is by talking about the importance of what the framing is for
entering and exiting the movement. So is this a place where, then, you build and you move forward? So, for example, the March of Dimes was an organization that was originally - now I'm blanking on it
- they were formed to prevent a certain -
KATRINA KIMPORT: - Polio. Well, once Polio was eradicated, they didn't say, "Okay, we're done." They sort of pivoted to start attacking other issues. In contrast, we have Freedom to Marry, which has
been sort of at the vanguard of the social movement organization pushing for marriage, and they announced that - they announced in July that they would be closing their doors, they were done. And so
what you have there is a loss of the institutional framework, the knowledge, the expertise, that set of network for mobilizing, or maybe you have an acknowledgment that now people should be switching
to other sort of activities. So I think it'll be very interesting to see whether or not this is something that can continue to be mobilized. And a lot of those questions, I think, are answerable,
both in thinking about the specific context, but also thinking about what the full overall field around movement contention is - that remains, and how it continues to organize itself.
PAULA ENGLAND: Can it be very quick? Because I want to take one question.
MICHAEL DORF: Yeah. So, I mean, it's a - there's a broader piece to it, right, which is for virtually any movement, there's a question of whether you make the sort of Bismarck move of, you know, you
get sort of partial reform, and does that zap the strength of the more radical movement? And I think the answer is, it depends on all sorts of factors.
PAULA ENGLAND: And we're going to take our final question.
STEPHANIE JONES: Hi. My name's Stephanie Jones, I'm a graduate student at Northern Illinois University. I was taken aback by that fantastic news that everyone is sort of more in support of same-sex
marriage, but part of what I saw represented in sort of the presentation, but also in terms of what I know doing work around, you know, same-sex marriage and marriage equality social movements is
that usually, when we're talking about same-sex marriage, we're thinking about very [INAUDIBLE] gendered and sort of, like, a very homogenous view of what that looks like. So is there any sort of
knowledge out there, or do any of you suspect that we can start to have a conversation about, like, you know, different gender presentations, you know, start looking at a movement that also
represents different ethnicities and races as well?
PAULA ENGLAND: Katrina, would you give a less than one-minute answer to that?
KATRINA KIMPORT: Sure. So I want to jump in on that. So I think that the difference between what the media choose to depict and who is actually marrying is, there's a pretty big gap. So the media
tends to project usually white men in tuxedos. I did a content analysis of all the images that came out of the 2004 same-sex weddings in San Francisco, and there were no men in dresses. So men tended
to have a fairly normative gender presentation, however, there was a great deal of diversity among the women. And I think that what that can do is, that can actually make visible in very strong ways
the non-normative identities; women who otherwise might be read as gay, or shown as gay - I meant to say it the other way around. Women who would otherwise be default read as heterosexual in their
presence with a partner. That reading is eliminated. So I think that the visibility question is big; I know that participants in marriage equality movements have been very cognizant of being careful
not to look like the stereotypical deviant scary gay, but also trying to be very clear that they're not opposed to that. So I think that that's an interesting tension that has happened within
movements sometimes for strategic reasons. I think that conversation is happening and efforts are being made around that. When that reaches the level of actual medial representation is a different
set of processes.
PAULA ENGLAND: Thanks for your question. Thanks, all of you, so much for coming. And thanks to the panel for wonderful presentations! [APPLAUSE]