Nan D. Hunter (Georgetown University Law Center) has posted Varieties of Constitutional Experience: Direct Democracy and the Marriage Equality Campaign (UCLA Law Review, Forthcoming) on SSRN. Here is the abstract:
Beginning in the 1970s, the overwhelming success of anti-gay ballot questions made direct democracy the most powerful bête noire of the LGBT rights movement. It is thus deeply ironic that, more than any other factor, an electoral politics-style campaign led to the national mandate for marriage equality announced by the Supreme Court in Obergefell v. Hodges. This occurred because marriage equality advocates set out to change social and constitutional meanings not primarily through courts or legislatures, but with a strategy designed to win over moveable middle voters in ballot question elections. Successful pro-gay litigation arguments, followed by supportive reasoning in judicial victories, grew directly out of the messaging frames that tested best with voters. A new variation on popular constitutionalism was born.
The lawyers who led the marriage equality campaign succeeded by decentering litigation until after opinion polls registered majority support for allowing same-sex marriage. In developing and implementing this strategy, they were assisted by professionals skilled in communications research and enabled by large-scale, coordinated funding. These dimensions of the marriage equality effort both validate and contradict much of the law and society scholarship predicting that court-centered rights discourse will inevitably dominate law reform campaigns.
In this Article, I argue that the same-sex marriage campaign is likely to foreshadow sophisticated social change efforts in the future that look less like traditional impact litigation strategies and more like social marketing campaigns, one component of which may be constitutional interpretation. Whether this model has major potential for significantly progressive change will turn on its effectiveness for issues that involve claims for redistribution of material resources or greater openness in governance, challenges with which the marriage equality effort was not forced to engage.
In the marriage campaign, voter-tested messaging led to two major discursive innovations. The first was the jettisoning of rights arguments in favor of storytelling models that were grounded in emotions rather than rights. Advocates stopped enumerating the legal benefits of marriage and talked more about the bonds of commitment exemplified by same-sex couples. Second, ballot question campaign ads increasingly featured the construction of a storytelling arc centered on how opposition to same-sex marriage of older or more conservative voters could morph into acceptance (even if not endorsement) of it. These narratives guided conflicted, moveable middle voters (and others) along a path toward a different sense of moral awareness about homosexuality and same-sex marriage than the manichean version of morality arguments used by conservatives. The new approaches were calibrated, tested, and refined for particular audiences, producing empirical evidence to support a new addition to the language of law: data-driven arguments.
The most significant limitations of this approach operated at the level of social and constitutional meanings. Several discursive pivot points that emerged from the messaging strategy led to the shrinkage of what might have been greater emphasis on the pluralism of family forms as the foundation for equality and liberty in the realm of personal relationships.
- The shift from an equality frame based on analogies to other social minorities to a universalized sameness approach;
- The shift from an emphasis on the material consequences of being denied access to the legal incidents of marriage to an emphasis on commitment, child raising, and the relational and emotional motivations for wanting to marry; and
- The avoidance of arguments for “expanding” or “changing” marriage and the stress of the desire for “joining” marriage.
This new frame reassured moderate voters and judges that the traditional norms and practices associated with marriage were not being threatened, producing a kind of cultural interest conversion. This was brought about through a discourse that was mined from the rhetoric of popular constitutionalism but suffused with the resonance of respectability.