Perry and the LGBTQ Movement


In order to discuss the ongoing impact of Hollingsworth v. Perry on LGBTQ activism, it is important to first examine the impact of litigation on social movements more generally.

Much of the literature on law and social movements is skeptical of the value of litigation for social movements. Some sociolegal scholars believe that social movements squander time and money when they seek legal change. They argue that, by pursuing change through the courts, rather than through the political system, movements cede decision-making to lawyers, impair mobilization efforts, and make their missions more conservative. Even more problematic litigation may create backlash, as in the cases of Brown v. Board of Education and Roe v. Wade. Many question whether law and legal institutions can ever produce progressive social change given that the courts are unlikely to be much ahead of public opinion.

In response, some sociolegal scholars counter that litigation can provide useful leverage for social movement organizations that are negotiating with opponents. Still others note that framing grievances in terms of legal rights can help to mobilize a constituency. For instance, a focus on legal rights has helped mobilize organizing against sex discrimination.

Both the critiques and defenses of litigation in social movements share something in common: they assume a movement with very clearly and narrowly defined goals. For example, those in favor of litigation point to the anti-sex discrimination movement; in that movement, legal strategies increased mobilization around the central goal of ending sexual harassment and discrimination. Conversely, those who claim that litigation necessarily derails mobilization assume that once a case is in court, there are no other issues that the movement can address. While these points of view are each valid in some cases, they are not easily applicable to social movements such as the LGBTQ movement that have numerous and complex goals.

In this essay, I adopt a multi-institutional politics (MIP) approach to assess the impact of Perry on the LGBTQ movement. This approach acknowledges that society is comprised of multiple institutions that exert power in different ways. To illustrate: the institution of psychiatry has been historically important in providing a reason to deny LGBTQ rights. Until 1973, the American Psychiatric Association (APA) defined homosexuality as a mental disorder, thus limiting the progress the LGBTQ movement could make. Once the APA removed homosexuality from its Diagnostic and Statistical Manual (DSM), the movement was able to make progress in areas such as immigration policy and public health regulations. Thus, psychiatry is one of the multiple institutions (along with the media, religion, education, and others) that exert power and influence over the lives of LGBTQ people.

The MIP approach does not negate or deny the importance of the state and the law in social movements. However, it demonstrates that institutions other than the state and the law also exert power over movements in symbolic and material ways. The MIP approach thus reveals that the impact of litigation onsocial movements should be variable and complex, depending on the institutions at issue. With this perspective, I now examine the effects of litigation on the LGBTQ movement.

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