Monday, August 2, 2010
Ziegler: "The Terms of the Debate: Litigation, Argumentative Strategies, and Coalitions in the Same-Sex Marriage Debate, 1993-2008"
Mary Ziegler (St. Louis University School of Law) has posted "The Terms of the Debate: Litigation, Argumentative Strategies, and Coalitions in the Same-Sex Marriage Debate, 1993-2008" on SSRN. Here is the abstract:
Leading scholarship on same-sex marriage litigation has been powerfully critical, focusing on its negative electoral and legislative effects. However, these studies have missed important effects that judicial decisions have had on the rhetorical strategies and coalitions that define debate. Partly because of Baker v. State, a Vermont opinion, and Goodridge v. Department of Public Health, a Massachusetts decision, national gay rights groups like the Freedom to Marry Coalition and the Human Rights Campaign began stressing equality-based claims. Socially conservative organizations like the Family Research Council increasingly emphasized religious freedoms or parental rights. At the same time, because of the decisions, alliances shifted. Labor and libertarian groups played a less central role, while civil-rights groups began shaping the alliances on either side.
Because they miss these developments, some leading studies are fundamentally incomplete. At this point, it is difficult to assess whether the changes studied here benefited either side. However, without studying all the effects of same-sex marriage litigation, current conclusions about its value are premature and potentially seriously flawed. Baker and Goodridge did not simply increase opposition to same-sex marriage. Both decisions also fundamentally changed the terms and players in the debate.