From Protest to Perry: How Litigation Shaped the LGBT Movement’s Agenda

Source: Gwendolyn Leachman, University of Wisconsin Legal Studies Research Paper No. 1271. July 25, 2014

From the abstract:
This Article empirically examines how litigation shapes the substantive agenda of a social movement. Critical scholars have argued that movement lawyers, as professionals and elites, tend to substitute their own priorities for those of their clients. Yet lawyers and litigation can also influence a movement’s agenda through subtle, organizational dynamics rather than through the volitional, ethical choices made by movement lawyers. This Article reexamines critiques of civil rights lawyering through a case study of the movement for lesbian, gay, bisexual, and transgender (“LGBT”) rights. This case study draws on quantitative and qualitative analyses of original data from more than two decades of LGBT movement history. These analyses reveal that litigation garnered more news media coverage than other tactics and that the LGBT movement organizations that used litigation had a greater likelihood of survival than organizations that did not. These benefits made litigation the most visible and established of all the LGBT movement’s tactics. In addition, LGBT protest organizations responded to the legal issues projected in the mainstream media to form their agendas, subtly redirecting those protest organizations away from their original priorities and toward legal goals. This Article makes a novel contribution to existing scholarship by exposing systemic processes that may privilege movement litigation relative to protest, elevating the issues being litigated to top movement priorities. Significant implications follow for theories of law and social change. The dominance of legal issues on the LGBT movement’s agenda marginalized movement demands for cultural transformation or structural change in favor of assimilationist goals, such as the right to marry, that translate well into formal legal claims. Understanding the dynamics revealed here, which allow litigation to set a social movement’s agenda, will help civil rights lawyers in the LGBT movement and beyond to provide more effective representation and to achieve more far-reaching social change.