In a relatively short period of time, the lesbian, gay, bisexual, and transgender (LGBT) movement has moved from the margins to the center. The movement\u27s push for equality has attracted the attentionboth sympathetic and oppositional--of important groups and individuals outside of the movement. Christian Right advocates, on the one hand, and government lawyers and private nonmovement lawyers, on the other, now invest heavily in litigation implicating LGBT rights. This mainstreaming of the LGBT movement yields significant issues for sexual orientation and gender identity scholars. In this Essay, I will first show how the LGBT rights context provides rich new material with which to explore decades-old debates and pressing new questions in sociolegal scholarship. Then, I will explain how the addition of new voices and the increasing acceptance of LGBT equality norms present significant substantive issues relating to religious liberty and antidiscrimination law

NeJaime, Douglas

English

Yale Law School Legal Scholarship Repository

ON THE CUTTING EDGE
NEW ENTRANTS BRING NEW QUESTIONS
Douglas NeJaime*
A. Introduction
In a relatively short period of time, the lesbian, gay, bisexual, and
transgender (LGBT) movement has moved from the margins to the
center. The movement's push for equality has attracted the attention-
both sympathetic and oppositional--of important groups and individuals
outside of the movement. Christian Right advocates, on the one hand,
and government lawyers and private nonmovement lawyers, on the other,
now invest heavily in litigation implicating LGBT rights. This main-
streaming of the LGBT movement yields significant issues for sexual
orientation and gender identity scholars. In this Essay, I will first show
how the LGBT rights context provides rich new material with which to
explore decades-old debates and pressing new questions in sociolegal
scholarship. Then, I will explain how the addition of new voices and the
increasing acceptance of LGBT equality norms present significant
substantive issues relating to religious liberty and antidiscrimination law.'
B. Sociolegal Scholarshp--Cause Lawyeing, Law and Social
Movements, and Legal Mobilization
The rise of the Christian Right legal movement and its increasing
attention to LGBT rights issues suggest critical questions that often have
been neglected in sociolegal scholarship. As an initial matter, the
literature on conservative cause lawyering is a domain from which sexual
orientation and gender identity scholars are largely absent Yet analysis
of conservative public interest lawyering is a worthwhile task. Christian
Right advocates frame LGBT issues in provocative and influential ways.
LGBT rights lawyers respond, unable to frame issues entirely on their
own terms. For instance, in California's Proposition 8 battle, Christian
* © 2010 Douglas NeJaime. Associate Professor, Loyola Law School Los Angeles. I
am grateful for the thoughtful comments I received at the Section on Sexual Orientation and
Gender Identity panel at the 2010 AALS Conference. Many thanks go to Suzanne Goldberg for
organizing this important discussion, and to Dean Spade, for his insightful comments on this
Essay.
1. This short Essay attempts to highlight and pose some key questions for future legal
scholarship on sexual orientation and gender identity. These highlights, of course, are colored by
my own research interests, and I want to acknowledge that a number of important and provocative
issues populate the field.
2. See ANN SoutrwoRTH, LAwYERS OF THE RIGHT (2008), for a thorough exploration of
conservative cause lawyering.
2010]
LAW & SEXUALITY
Right advocates connected marriage equality to gay-inclusive public
school curriculum, forcing Proposition 8 opponents to address both
issues.' LGBT advocates spent significant time and money responding
to the fears of parents with school-age children and, instead of embracing
gay-inclusive curriculum, largely dismissed the prospect of such
curriculum as far-fetched and irrelevant.' How, then, do
countermovement frames affect movement messaging, priorities, and
resource allocation?
On a broader level, the relationship between the Christian Right and
LGBT rights movements provides a productive lens through which to
explore movement and countermovement phenomena. While most
scholarship on law and social movements conceptualizes movements
battling against the state,5 the intense relationship between the Christian
Right and LGBT rights movements illustrates the need to consider and
understand opposing movement relationships. How does the increasing
success of the LGBT movement facilitate Christian Right advocates'
appeal to minority rights claims? How does analysis of the Christian
Right/LGBT rights movement/countermovement relationship complicate
established theories of movement mobilization and organization?
The LGBT movement's very recent history has witnessed a trend
toward more sympathetic state actors, further underscoring how a simple
model in which a social movement opposes the state does not map neatly
onto LGBT rights. In fact, in the past year, top government lawyers from
California and Massachusetts have staked out significant pro-gay
positions. In the federal challenge to Proposition 8, the California
Attorney General argued that the state constitutional amendment is
unconstitutional under both federal due process and equal protection
guarantees.6 At the same time, the Massachusetts Attorney General
challenged part of the federal Defense of Marriage Act (DOMA).7
Working with an earlier suit brought by Gay & Lesbian Advocates &
3. See California General Election Official Voter Information Guide, Arguments: Prop
8(2008), http://www.voterguide.sos.ca.gov/past/2008/argu-rebut/argu-rebutt8.htm.
4. See id.
5. See David S. Meyer & Suzanne Staggenborg, Movements, Countermovements, and
the Sucture of Political Oppommity, 101 Am. J. Soc. 1628, 1629 (1996) ("Because most
empirical and theoretical work on social movements focuses on movement challenges to the state,
the phenomenon of ongoing interactions between opposing movements demands a revision and
extension of our theories of social movements and social change.").
6. See Answer of Attorney General Edmund G. Brown Jr., Peny v Schwarzenegger
2009 WL 1748382 (N.D. Cal. May 22,2009) (No. 3:09-cv-02292-VRW).
7. See Complaint, Commonwealth ofMass. v United States Dep't ofHealth and Human
Services, No. 1:2009-cv-1 1156 (D. Mass. July 8, 2009), http://www.boston.com/news/politics/
politicalintelligence/DOMA%20Complaint/o2OFINAL.pdf.
[Vol. 19
ON THE CUTTING EDGE
Defenders (GLAD),8 the Massachusetts Attorney General argued that
DOMA unconstitutionally requires Massachusetts to treat similarly
situated couples differently.9 We can no longer consider the state to be
the opposition to LGBT rights claims; rather, LGBT and Christian Right
advocates each attempt to seize on openings offered by state actors
sympathetic to their respective movements. By reconceptualizing
movement dynamics in this way, I do not mean to cast the state as either
a centralized or benign actor. Rather, power operates in multiple, diffuse
ways across multiple institutional domains. How do the dynamics of
power across state institutions affect the political opportunity structure
available to the LGBT rights and Christian Right movements? How do
the changing relationships of state actors to each movement influence
how the respective movements use elite support to bring about social
change?
The new role that government lawyers have taken in pro-gay
litigation also complicates traditional cause lawyering analysis. While
the increasing presence of government lawyers in LGBT rights litigation
speaks to the progress of the movement, that same presence suggests a
potential shift away from a carefully orchestrated trajectory. In
challenging Proposition 8 in state court, the California Attorney General
put forth a novel theory, arguing that a simple majority of voters cannot
take away a fundamental right from a suspect class without a compelling
governmental interest."0 He expressly rejected the amendment/revision
theory advanced by LGBT rights lawyers." While the Attorney General's
opposition to the newly adopted constitutional amendment created a
significant moment in LGBT history, his legal position produced some
internal tension that those opposing Proposition 8 had to manage and
resolve. How do government lawyers who side with a social movement
negotiate their roles as public lawyers and cause lawyers? And how do
movement lawyers respond to sympathetic but independent government
lawyers?
The recent federal marriage equality lawsuit, brought by prominent
private lawyers against the advice of movement advocates, casts in even
8. See Complaint for Declaratory, Injunctive, or Other Relief and for Review of Agency
Action, Gill v Office of Personnel Management (D. Mass. Mar. 3, 2009), http://www.glad.org/
uploads/docs/cases/gill-complaint-03-03-09.pdf.
9. Complaint, No. 1:2009-cv-l 1156, supra note 7, at 3-4.
10. See Answer Brief in Response to Petition for Extraordinary Relief, Tyler v State of
California, No. 5168066 (Cal. S. Ct. Dec. 19, 2008), http://www.courfinfo.ca.gov/courts/supreme/
highprofile/documents/S 168066-answer-brief-petition.pdf
11. See id. at 22-53.
2010]
LA W& SEXUALITY
starker relief the threat to social movement control.'2 David Boies and
Ted Olson, supported by the newly formed American Foundation for
Equal Rights, took decisive action ahead of the organized movement's
timeline.'3 Their federal suit challenging Proposition 8 provides further
evidence of the mainstream-ing of LGBT equality norms. The unlikely
marriage of two ideological rivals presents the question of marriage
equality as a nonpartisan matter of basic fairness. And it attests to the
success of the LGBT rights movement. But for work on cause lawyering
and legal mobilization,'4 the suit presents provocative questions regarding
movement control. How do movement lawyers maintain control of
strategy? How might elite support-a key indirect effect in the legal
mobilization framework-actually threaten a movement's cause? How
do advocates react to loss of control at the hands of supportive elites?
And how does the move by Boies and Olson tell us about the risks and
benefits of court-centered strategies in LGBT rights work? Might
reliance on litigation without adequate popular support jeopardize the
movement's progress?
While the LGBT rights domain provides experiences that pose
pressing new questions on cause lawyering and law and social
movements, it also presents new material to explore classic debates in
sociolegal theory. In fact, many scholars are looking to the LGBT rights
movement for rich new data with which to assess the effectiveness of
litigation and the role of lawyers in social movements.'5 Recent
experiences with marriage equality litigation provide empirical evidence
that speaks to the place of litigation in social change campaigns and to
the strategic moves of activist lawyers.'6 Furthermore, exploring the
movement and countermovement relationships between LGBT rights
advocates and Christian Right advocates might have significant
implications for theorizing social movement lawyers' roles and
determining the effectiveness of litigation strategies. Within the legal
mobilization framework, what have been the indirect effects of marriage
equality litigation? How have both LGBT and Christian Right advocates
12. See Perry v. Schwarzenegger, 592 E3d 971 (9th Cir. 2009).
13. See Complaint for Declaratory, Injunctive, or Other Relief, Perry v Schwazenegger,
2009 WL 1490740 (N.D. Cal. May 22, 2009) (No. CV-092292VRW).
14. See, e.g., MICHAEL W MCCANN, RIGHTS AT WORK: PAY EQUITY REFORM AND THE
PoLmcs OF LEGAL MOBILIZATION (1994).
15. See, e.g., Scott L. Cummings & Douglas NeJaime, LawyeringforManage Equality,
57 UCLA L. REv. (forthcoming 2010).
16. Compare GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT
SOCIAL CHANGE? (2008), with Thomas M. Keck, Beyond Backlash: Assessing the Impact of
JudicialDecisions on LGBTRfghts, 43 L. & SOC'Y REv. 151 (2009).
[Vol. 19
ON THE CUTTING EDGE
conceptualized litigation, and how much have they affirmatively turned
to courts for social change?
C. Antidiscrimination and Religious Liberty
Some of the same new entrants who present significant questions
for sociolegal scholarship also affect the substantive doctrinal issues
facing sexual orientation and gender identity scholars. Christian Right
advocates have successfully pushed antigay initiatives across the country.
Sexual orientation scholars must address how such laws, which strike at
the heart of lesbian and gay families, contravene foundational
constitutional protections. How does Arkansas's Act 1, which prohibits
unmarried cohabiting couples from fostering or adopting children,7 deny
equal protection of the law, invade privacy and freedom of intimate
association, and strike at parental rights of LGBT individuals? And how
does it do the same to other individuals who fail to meet entrenched
notions of the married, heterosexual, nuclear family? Moreover, how
does Act 1-and a host of other ballot initiatives across the country-
distort the political process and complicate our conceptualization of
direct democracy?
At the same time, Christian Right advocates have been forced to
become more defensive. With government actors increasingly adopting
LGBT equality norms (and displacing discrimination norms), Christian
Right advocates must react. As LGBT rights are achieved, the contours
of those rights must be determined. Such determinates will often turn on
the operation of religious objections. How will religious exemptions
carve out exceptions to LGBT rights? How will religious free exercise
and expressive association influence the meaning of sexual orientation
and gender identity nondiscrimination?
The push for religious accommodation by Christian Right lawyers
illuminates the importance of substantive issues underexplored and
under-theorized by sexual orientation and gender identity scholars.
While some religious liberty advocates might exaggerate the extent to
which LGBT rights threaten religious freedom, the conflict is real.
Indeed, as marriage equality has moved from an impossibility to a reality,
some state lawmakers have taken up the task of balancing the rights of
same-sex couples to marry against the rights of religious groups and
17. See Lynda Altman, Editorial, Arkansas' Act I Limts Foster Care, Adoption to
Married Couples Only (Oct. 23, 2008), http://www.associatedcontent.com/article/1137116/
Arkansas act 1_limits fostercareadoption.html?cat-17.
2010]
LA W& SEXUALITY
individuals not to recognize such marriages." Most of the scholars
weighing in on these questions come from the law and religion field.
While some sexual orientation scholars, most notably Chai Feldblum and
Andrew Koppelman, do an admirable job of articulating normative
positions in favor of LGBT equality while providing careful (but
divergent) analyses of religious objections, more voices are needed.'9
This conflict and its resolution will surely pervade the field for years to
come, and it would be wise for sexual orientation and gender identity
scholars to turn their attention to it. Our careful analysis, with its due
respect for the rights of LGBT individuals, will add an important
perspective to the scholarly debate and offer an essential contribution to
future legislative efforts. Of course, even as we maintain a normative
commitment to LGBT rights, we must acknowledge the importance of
religious liberty; in fact, we must take to the question of religious
accommodation the very solicitude for minority rights that informs
sexual orientation and gender identity scholarship. How are religion- and
LGBT-based identities similar? How do they manifest themselves in
modes of public expression? How can courts and legislatures clearly
articulate LGBT equality norms and yet also respect and accommodate
sincere religious objections?
D Conclusion
We have reached a pivotal moment in sexual orientation and gender
identity work. We are not simply speaking to each other. Others are
paying attention. Christian Right advocates have devoted significant
attention to our issues. Government lawyers are now taking up our
cause. And private lawyers on both sides of the aisle are defending our
rights. But with these new players come new empirical, theoretical, and
doctrinal questions. We should address such questions head-on: How
have Christian Right lawyers changed our understanding of cause
lawyering? How does the relationship between the Christian Right and
LGBT rights movements inform work on law and social movements?
How do sympathetic government lawyers and private nonmovement
lawyers complicate our definition of cause lawyers and threaten
movement lawyer control? How do the recent experiences of LGBT
18. See, e.g., Kevin Landrigan, Religion Clause Added to Gay Marriage Proposal,
NASHUA TELEGRAPH (N.H.), May 30, 2009, at Al.
19. See, e.g., Chai R. Feldblum, Moml Conflict and Liberty. Gay Rights and Reigion,
72 BROOK. L. REv. 61 (2006); Andrew Koppelman, You Can't Huny Love: "y
Antidiscimination Protections for Gay People ShouldHave Religious Exemptions, 72 BROOK. L.
REv. 125 (2006).
186 [Vol. 19
2010] ON THE CUTTING EDGE 187
rights litigation shed light on debates regarding the effectiveness of court-
centered strategies? How do efforts by the Christian Right test our
notions of equality and liberty? How do they challenge our ideals about
the political process and the judiciary's role in protecting minority
groups? And how do they pose difficult questions of religious freedom,
antidiscrimination, and minority rights?


New Entrants Bring New Questions

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