The Courts, the Ballot Box, and Gay Rights
How Our Governing Institutions Shape the Same-Sex Marriage Debate
Sales Date: August 12, 2016
248 Pages, 6.00 x 9.00 in
- Published: August 2016
- Published: August 2016
If the same-sex marriage debate tells us one thing, it’s that rights do not exist in a vacuum. What works for one side at the ballot box often fails in the courtroom. Conservative opponents of same-sex marriage used appeals to religious liberty and parental rights to win ballot measure campaigns, but could not duplicate this success in court. Looking at the same-sex marriage debate at the ballot box and in the courts, this timely book offers unique insights into one of the most fluid social and legal issues of our day—and into the role of institutional context in how rights are used.
Why, Joseph Mello asks, did conservative opponents of same-sex marriage enjoy such an advantage when debating this issue in the popular arena of a ballot measure campaign? And why were they less successful at mobilizing the language of rights in the courts? His analysis shows us that rights don't just entitle us to resources; they also shape the way we see ourselves and are perceived by others. Thus, by using the language of rights to frame their cause, conservative opponents of same-sex marriage were able to construe themselves as victims of oppression, their religious and moral beliefs under threat. The same language, however, proved less useful, or even counterproductive, in courtrooms, Mello concludes, because the court’s norms and constraints force arguments to undergo more searching scrutiny—and rights-based arguments against same-sex marriage contain discriminatory stereotypes that cannot be supported with evidence.
In its analysis of the same-sex marriage issue, The Courts, the Ballot Box, and Gay Rights provides insights that illuminate some of the most salient rights-based issues of our time—including affirmative action, abortion, immigration, and drug policy. The book offers a new way of understanding how such issues are decided, and how important context can be in determining the outcome.
"By focusing on opponents of same-sex marriage and institutional contexts, Mello’s book makes a much-needed contribution to the scholarship on lesbian, gay bisexual, and transgender politics in the United States."—Political Sciene Quarterly
"A model of lucid, accessible prose . . . Mello gives his audience an excellent example of a mixed methodology in practice and sheds light on important issues of interest to legal scholars, sociologists, and political scientists alike."—American Review of Politics
"An interesting and thoughtful examination of how the political system shapes debates such as the same-sex marriage debate. The author attempts to help us better understand how institutional norms and constraints shape the debate over issues involving fundamental rights."—Choice
"In The Courts, the Ballot Box, and Gay Rights, Joseph Mello provides a nuanced, detailed analysis of the importance of context for the development of arguments for and against same-sex marriage. This book fundamentally transforms our understanding of how social movements develop arguments by connecting two arenas of contention that are typically analyzed separately—the courts and the ballot box." —Amy L. Stone, author of Gay Rights at the Ballot Box
"Joseph Mello shifts attention from the conventional question of which officials should decide policy issues to how different institutional environments variably shape the structure and terms of policy debates. The author offers an extended case study of conservative opposition to marriage equality in and beyond the courtroom to illustrate his thesis about variations in organizational ‘bias.’ Scholars interested in rights-based social movements, institutional policy processes, and socio-legal studies generally will find this clearly written, well organized book both insightful and compelling."—Michael McCann, author of Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization
1. The Mobilization of Bias
2. Citizens or Deviants? Rights and the Construction of Gay Identities
3. Sites of Conflict: How Institutions Shape the Same-Sex Marriage Debate
4. No Right to Object? Opposition to Same-Sex Marriage in the Golden State
5. “A Place Apart”: Opposition to Same-Sex Marriage in Maine
6. Taking (or Leaving) the Initiative Process
Appendix A. Same-Sex Marriage Ballot Measures
Appendix B. Individualism Master Frame Logit Regression
Appendix C. Religion, Threat, or Slippery Slope Subframe Logit Regression